A. Pasayat, J.
1. These two appeals are interlinked being directed against the judgment of learned Additional Sessions Judge, Berhampur convicting the present appellants (hereinafter referred to as the 'accused' by their respective names) for commission of offences punishable under Section 302 read with Section 34, and under Section 307 read with Section 34 of the Indian Penal Code, 1860 (in short, IPC). Each one of them is sentenced to undergo R.I. for life for the first offence and For five years for the second offence.
2. In trying to save dignity and honour of his sister, a brother has lost his life and another sustained severe injury. This is the background of accusations which led to the trial and ultimate conviction. Essentially the facts are as follows :
Bharati Moharana (P.W. 1) is the sister of Narendra Moharana (hereinafter referred to as the 'deceased'). She at the relevant point of time was a student of Post Graduate Science course of Berhampur University. On 16-11-19.90 she was coming to Kamapalli Chhaka to catch the University bus. While corning to the bus stop, she had to pass through the level crossing. At that time accused Braja Padhi was sitting near a betel shop and made obscene comments. She took exception to it and retorted, and then went to University. On returning home, she naratted the incident to her mother who advised her not to enter into exchange of words with the accused. On the next day i.e., on 17-11 -1990 at about 10 am while she was going to University accused Braja Mohan Padhi and five others accosted her near the railway level crossing. Braja Padhi asked her as to why she replied back to him on the previous day When 'she questioned him as to why he had trickle obscene comments. Braja told that he would kick her. She saw the accused persons except Budhi Pradhan, there. they did not allow her to go to the University and while she Was returning to her house, Braja told that he would be following her. She narrated the incident to her mother in her house, Bharati, her mother (P.W. 2) and her elder sister came out of their house. Hardly had they gone few steps from the house, when they found Braja in the company of four others waiting near a water pipe, Braja abused them and told P.W. 1 that he would rape her on the main road and none, would come to her rescue. He abused them in very obscene language. At the intervention of one gentleman of the locality they went away. P.W. 1 and her sister went to Nehru Nagar and informed the matter to P.W. 6, who happened to be their cousin being their maternal uncle's son, and requested him to inform their elder brother Narendra, the deceased about the incident. Deceased had a betel shop in Rukmani Cinema Hall. Both P.W. 6 and the deceased came to the house of Narendra, who took P.W. 1 with them to identify the accused persons. When P.W. 1 came along with them, she saw only accused Bhagaban near a betel shop. She identified Bhagaban to her brother. Being advised by her brother, the deceased, she proceeded towards her house. While coming near a turning, she looked back and found that 10 to 15 persons armed with different types of lethal weapons had surrounded her brother. Out of fear she went to her house and informed her mother that Harendra had been surrounded. While returning by a motor cycle, P.W. 6 saw accused Braja and deceased quarrelling. Braja gave a fist blow on the right side cheek of deceased. P.W. 6 went there and enquired about the matter. Braja abused him and asked others to assault him. Deceased asked P.W. 6 to report the matter in the Police Station. While both of them were coming on their respective motor cycle, Braja gave a tangia blow to P.W. 6, who out of fear started running being followed by the deceased towards railway station being chased by the accused persons. While crossing the railway track, P.W. 6 stumbled down. The deceased tried to lift him, Braja pierced a tenta on the chest of the deceased. Thereafter other accused persons assaulted him with sword, tangia and tenta. When Pramod Choudhury (P.W. 8) and Pramod Sahu (P.W. 10) raised alarm, the accused persons fled away. Shortly thereafter, Sudan Pradhan (P.W. 9) came there and arranged an auto rickshaw to remove the deceased and P.W. 6 to hospital. On the way P.W. 6 narrated the incident to P.W. 9, and told him that Bapini Padhi (Braja) of Ram Nagar and others assaulted him and the deceased. On the way to hospital, the deceased breathed his last. On the basis of information received, Sudam (P.W. 9) lodged the first information report. Investigation was undertaken, and on completion thereof charge sheet was placed against the appellants and Bhagaban, who has been acquitted by the learned Addl. Sessions Judge, Berhampur.
3. In order to establish its case, 12 witnesses were examined on behalf of the prosecution. Out of them P.Ws. 1, 6, 8 and 10 claimed to be eye-witnesses to the occurrence. Bharati (P.W. 1) and her mother (P.W. 2), according to the prosecution, had seen the first part of occurrence. P.W. 3 is the Judicial Magistrate, first class, who conducted T.I. parade, P.Ws. 11 and 12 were two police officers who conducted investigation.
4. Accused Braja took the plea that he was dragged by the members of prosecution party and was assaulted by deceased Narendra, P.W. 6 and their companions. Accused Bhagaban took the plea of alibi. Accused Pappu, Kailash, Bikram and Budhia took the plea that they were assaulted by P.W. 6 and the deceased. Accused Bhagaban and accused Braja examined one witness each in support of their respective stands.
5. Placing reliance on the evidence of P.Ws. 1,6,8 and 10, the learned trial Judge recorded the conviction and awarded sentences as indicated above. Accused persons have filed these appeals on several grounds which shall be dealt with in detail infra, vis-a-vis the stand of learned counsel for State who supported the judgment under challenge. Challenge of the appellants is mainly to the acceptability of evidence.
6. At this juncture, it is necessary to take note of the statements of the witnesses, more particularly those who claimed to be eye witnesses. Evidence of P.Ws. 1 and 2 shows that obscene words were used by Braja and the same were so obnoxious that the witnesses were perturbed and disturbed and sent information through P.W. 6 to call the deceased. P.Ws. 1,6,8 and 10 identified the suspects and their statements were taken on oath. In the T.I. parade conducted by Judicial Magistrate, first class (P.W. 3), accused Braja and Bhagaban were identified. The doctor P.W. 4, who conducted post mortem examination, found as many as 22 injuries out of which seven were incised and cut injuries and the rest were abrasions and lacerations. The doctor opined that the stab and incised injuries were caused by sharp cutting and pointed weapon and abrasion and lacerated wounds were caused by hard and blunt weapon. P.W. 6's evidence is to the effect that he learnt about the use of obscene, vulgar language from P.W. 1 and informed the deceased that he was wanted in his house. So both came back. When he came to the spot of occurrence all the accused persons and some others had encircled the deceased. The deceased was assaulted by accused Braja. When P. W. 6 and deceased wanted to go to report the matter to Police, they were attacked by accused Braja. So while they were running away to prevent further assaults, on the railway track, he stumbled down on the railway line and deceased was trying to lift him. At that time, accused Braja and other accused persons assaulted them with axe, tenta, sword etc. Accused Braja gave a tenta blow on the right side chest below the arm-pit of the deceased and other accused persons assaulted him and the deceased with other weapons, such as sword, tenta etc. by which both sustained severe injuries. When P.Ws. 8 and 10, according to P.W. 6, raised hullah and asked them not to assault, accused Braja and others chased them to assault them also. According to P.Ws. 8 and 10, while they were coming to Ram Nagar, they found deceased lying on the ground and P.W. 6 was in sitting position and accused Braja and others except accused Bhagaban were assaulting the deceased and P.W. 6 with sword, axe and tenta. At that time P.W. 6 was crying for help. When they tried to come to their rescue; accused Braja abused them and rushed with other accused persons to assault, and therefore, they ran away. However, after having accomplished their violent and cruel act, they left the place.
7. Stand of the learned counsel for accused Braja is to the effect that one Arakhita Behera, a constable is eye-witness to the occurrence. He saw that there was free fighting between two groups near the Outpost and he went to Baidyanathpur P.S. and informed the matter. So, the OIC Shri Mohan Rao and others came to the spot. According to the learned counsel, FIR (Ext. 11) is not the actual first information report, but the report of Arakhita Behera is the proper first information report. Reliance was placed on Ext. B/1, the station diary entry for this purpose. This entry was made by one Arakhita Behera, who was station diary in charge of komapalli Outpost and made the entry Ext. B/1. This was proved by the Inspector-in-charge, examined as defence witness on behalf of accused Braja Padhi. After signature of Arakhita Behera, it is written that seeing the quarrel, he went to the Police Station to report the matter. On verification of records, it is seen that this sentence is written after the signature. The Inspector examined as D.W. 2 stated that this entry is a fabricated one and departmental enquiry has been conducted. This is corroborated by the evidence of P.Ws. 11 and 12. So the statement of Arakhita Behera appears to be false. Mere perusal of the entry clearly shows that the sentence about the quarrel and visit of police officers to the spot on the basis of station diary entry is written subsequently, and it appears that departmental enquiry was conducted for that purpose. The plea of the learned counsel for accused that first information report was lodged by Arakhita Behera is outcome of suppressions and manipulations. Though it is urged that statement of Arakhita Behera recorded during investigation should be considered, the plea is clearly untenable. A statement recorded under Section 161, Cr. P.C. is not evidence. Evidence of P.Ws. 11 and 12 and D.W. 2 shows that there was no such report lodged by Arakhita Behera at the Police Station and no police officer went to the spot on the report of Arakhita Behera as claimed. He had manipulated the entry in the station diary (Ext. B/1) after he had closed the diary. The plea that Ext. 11 is not the first information report and the report submitted by Arakhita is the proper FIR is without any substance. The learned trial Judge has rightly rejected the plea.
8. As regards acceptability of evidence of P.W. 6, it is seen that P.W. 6 was injured at the time of assaults. As has been observed by the Apex Court in AIR 1976 SC 2027 : (1976 Gri LJ 1563), ocular version of such witness is of great value. Though P.Ws. 1 and 2 have been characterized as partisan witnesses, there is no substance. Genesis of occurrence is stated to be the use of obscene language by accused Braja. On the next day also such obnoxious act was repeated. Accused Braja and other accused persons except accused Budhia obstructed P.W. 1. When she came with her brother accused Braja and others were there and abused her in filthy language. P.W. 6 took P.W. 1 to identify the culprit who used filthy language.
9. There is no provision in law that a person who is related to the deceased has to be termed as an unreliable witness. More often than not, a relation is supposed to be a truthful witness. That is because a relation would not normally implicate an innocent person and would shield real culprit. Interestedness should be to get a person convicted. When allegation of interestedness is made, the accused is required to establish it and to show that the witnesses had partisan approach. In such a case, the Court is required to make a careful analysis of the evidence to find out whether allegation of partisan approach is borne out from materials on record. Facts showing that the witness is biased or partial in relation to the parties or the cause has to be elicited-in cross-examination or if denied independently proved. It has always been permissible to call evidence to contradict a witness's denial of bias or partiality towards one of the parties and to show that he is prejudiced so far as the case being tried is concerned. In Attorney General v. Hitchoock (1847) 1 Exct 91 Pollock C.B. observed as follows :
It is certainly allowable to ask a witness in what manner he stands effected towards the opposite party in the cause and whether he does not stand in such a relation to that person as is likely to affect him and prevent him from having an unprejudiced state of mind.
It is not sufficient to plead bias or interested-ness solely on the basis of relationship.
10. It is submitted by learned counsel for the appellants that P.Ws. 8 and 10 are chance witnesses, and therefore, their evidence is unrealiable and no Credence can be put on its Corning to the plea of the accused-appellants that P.V/s. 8 and 10 were 'chance witnesses', who have hot explained how they happened to be at the alleged place of occurrence it has to be noted that the said witnesses are independent witnesses. There was not even a suggestion to the witnesses that they had any animosity towards any of the accused. In a murder trial by descricing the independent witnesses as 'chance witnesses it cannot be implied thereby that their evidence is suspicious and their presence at the scene doubtful. Murders are not committed with previous notice to witnesses, soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground they are mere 'chance witnesses'. The expression 'chance witness' is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual. It has not been shown as to how the evidence of P.Ws. 8 and 10 is false. Their presence at the place of occurrence cannot be said to be unusual.
11. Injuries on P.W. 6 were very serious. The witness himself has stated about the blow given by accused Braja with axe. On a combined reading of the evidence of P.Ws. 1, 6, 8 and 10, prosecution has been able to substantiate the accusations. Therefore, the appeal filed by accused Braja is without any merit as advanced and the conclusions recorded do not suffer from any infirmity.
12. So far as other accused persons are concerned, it is submitted that in the statement given by P. W. 6 on the first occasion names of the said accused persons were not there. Learned trial Judge while discussing his evidence has indicated that due to seriousness of his condition, he could not name those accused persons at the first instance. In view of the circumstances indicated, non-disclosure of names of some of the accused persons by P. W. 6 at the first instance cannot be said to be fatal. In the subsequent examination, he has clearly stated about the accused persons, and the roles played by them. Explanation offered by the prosecution, regarding the necessity for subsequent examination cannot be said to be so unreasonable as to warrant rejection.
13. It has been urged that Section 34, IPC has no application as several accused persons cannot be said to be associates of Braja to share all of them anything common about the object to commit murder, and Section 34, has no application.
The contention is fallacious and cannot be accepted. Section 34 is to be read along with the preceding Section 33 which makes it clear that the 'act' spoken of in. Section 34 includes a series of acts as a single act. It follow that the words 'when a criminal act is done by several persons' in Section 34, may be construed to mean 'when criminal acts are done by several persons'. The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise, for instance, one may only stand guard to prevent any person coming to the relief of the victim or to otherwise facilitate the execution of the common design. Such a person also commits an 'act' as much as his co-participants actually committing the planned crime. In the case of an offence involving physical violence, however, it is essential for the application of Section 34 that the person who instigates or aids the commission of the crime must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the (other) facilitate the execution of the common design in itself tantamount to actual participation in the 'criminal act'. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them.
14. Section 34, I.P.C. enacts that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons shall be liable for that act in the same manner as if it were done by him alone. In Section 33, the word 'act' denotes as well a series of acts as a single act. The criminal act refers to the totality of the series of acts reflecting the unity of the criminal behaviour which resulted in the offence for which each individual is to be punished. If the act of each individual was done in furtherance of the common intention to commit murder, then each one of the offenders is constructively liable for the offence of murder even though his own act might not have resulted in causing death. If the individual act is performed in furtherance of the common intention, the vicarious liability accrues. Section 34 deals with separate acts similar or diverse by several persons. The offence is attributable to each offender, provided it was done in furtherance of the common intention. Common intention is not same or similar intentions. It pre-supposes a prior concert and a pre-arranged plan. It follows that there must be a prior meeting of the mind. Several persons can simultaneously attack a man. Each can have the same intention, that is intention to kill. Each can individually cause a separate fatal blow. Yet, there may not exist a common intention if there was no prior meeting of the mind. In such a case, each would be individually liable for the injuries he causes. None can be vicariously convicted for the act caused by the other. If the prosecution fails to prove that the blow of a particular offender caused murder, he cannot be convicted of that offence. The partition between the limits of common intention and same or similar intention is, however, thin though the distinction is real and substantial and if overlooked, it may be result in miscarriage of justice.
This is, however, not to say that the prearranged plan need necessarily be an elaborate one. Nor is it necessary that long interval of time must elapse between the meeting of the mind and the preparation of the act. The common intention may develop and be formed suddenly. To illustrate, when a person asks others to help him to kill the deceased and thus other persons, either by their acts or words, assault him or join with him in the assault, common intention is established. The common intention in such a case is formed on the spur of the moment. Existence of prior concert is to be determined with reference to the facts and circumstances of each case. The conduct preceding the commission of offence, the nature of injuries, the manner of causing them, the seat of the injury, the conspiracy before the offence is committed and the subsequent conduct, such as, running away together, are some of the important matters to be taken into consideration for deducing the existence of common intention. In other words, each case should depend upon its own facts and circumstances to judge whether there was common intention or same or similar intention.
15. Considering in the background as highlighted above, Section 34, I.P.C. has been correctly applied. Learned trial Judge's conclusions that the accused persons are guilty, cannot be faulted, and therefore, no interference is called for.
Both the appeals fail and are dismissed.
S.C. Dutta, J.
16. I agree