Judgment:
A. Pasayat, J.
1. Appellate order passed by the learned Sessions Judge, Ganjam, Berhampur confirming judgment of conviction and sentence passed by the learned Chief Judicial Magistrate-cum-Assistant Sessions Judge, Berhampur is the subject-matter of challenge in this revision.
2. Background facts sans unnecessary details are as follows :
On 26-12-1988 in the afternoon on Kailash Sasmal, who faced trial along with the petitioner went to the house of informant Somanath Patra (P.W. 1) and wanted to know whether his nephew Debaraj Padhi had come there. He identified himself as a friend of said Debaraj. On getting a negative reply, he left on the pretext of receiving him at the bus-stand. He left his bag in the house of Somanath. At the dead of night he came back again to the house and Identified himself as Dandapani Gouda. which is the actual name of present petitioner, arid asked for shelter which was provided. He left in the next morning and again returned in the evening and enquired about arrival of Debaraj. On getting information that he had not arrived, he went out on the pretext of meeting him at the bus-stand. But he returned again in the mid-night and asked for shelter in the house. Somanath was staying alone as his wife Padmabati (P.W.2) had gone to another village in connection with family affairs. When P.W. 1 opened the door co-accused Kailash with a view to force his entry into the house, caught hold of Somanath's neck and made him to slump down. Two others also entered into the house following Kailash and delivered punches which resulted in loss of one upper tooth. They broke open a box by means of a crowbar. The box belonged to Somanath. By breaking open the box they pocketed all the ornaments available and decamped after locking the front door of the house from outside. In the following morning, at about 6 a.m. Brundaban Padhi (P.W.5) came and knocked the door, and with his help Somanath came out of the house. After arrival of P.W. 2, actual loss of ornaments and cash could be ascertained, and thereafter information was lodged at the police station. Investigation was undertaken, and on completion thereof charge-sheet was submitted.
3. The petitioner and co-accused were found to be moving suspiciously and were arrested by a Havildar of Police while he was patrolling in Digapahandi. Gold ornaments vide Exts. XI to XXVIII were found in a bag carried by the accused persons. They were taken to the Police Station and seizure of those ornaments was made. When the first information report was lodged, it was found that description given about [the stolen articles tallied with the articles seized.
4. The accused persons pleaded innocence.
5. On consideration of the evidence of witnesses, learned Chief Judicial Magistrate found the petitioner and the co-accused Kai lash Sasmal to be guilty of offence punishable under Section 394 read with Section 397 of the Indian Penal Code, 1860 (in short, 'IPC'), and Section 342, read with Section 34, IPC, and convicted them. The co-accused Damo Padhi was found not guilty, and was acquitted under Section 235 of the Code of Criminal Procedure, 1973 (in short, the 'Code'). Petitioner and co-accused Kailash Sasmal were each sentenced to undergo rigorous imprisonment for seven years, and to pay a fine of Rs. 500/- in default to undergo R.I. for two months under Sections 394/397, IPC. They were further sentenced to R.I. for six months under Section 342, IPC. The sentences were directed to run concurrently subject to set off for under-trial prisoner period under Section 428, of the Code. Appeal before the learned Sessions Judge was dismissed and conviction and sentence were maintained.
6. According to Mr. A. K. Acharya, learned counsel for petitioner, prosecution has not been able to establish its case so far as petitioner is concerned, and after the learned C.J.M, found the co-accused Damo Padhi to be not guilty, he should not have held the petitioner to be guilty. Alternatively it is submitted that there is no material to show that the petitioner committed any act in furtherance of common intention. The accusations did not relate to any blow being given by the petitioner which resulted in the loss of tooth. Therefore, Sections 397 and 34 have no application. It is also pleaded that the petitioner is in custody for more than six years and therefore, a liberal view is warranted,
7. Mr. N. Prusty, learned counsel for State on the other hand submitted that the two courts on elaborate analysis of the evidence have come to hold that the petitioner was guilty, and while exercising revisional jurisdiction fresh appraisal of evidence should not be done. It is stated that the conclusions are not perverse or unreasonable to warrant interference in exercise of revisional jurisdiction by this Court. It is also submitted that the informant (P.W. I) received blows on his face which resulted in loss of a tooth. Therefore, Sections 397 and 34, IPC are clearly attracted.
8. The courts below on threadbare analysis of the evidence of P.W. 1, the victim, have held his evidence to be credible and cogent. No infirmity in the conclusions is shown to me to warrant interference while exercising revisional jurisdiction.
9. The object of revisional jurisdiction is to confer upon the High Court a kind of supervisory power in order to correct miscarriage of justice and this power is discretionary. Normally High Court does not interfere with the finding of fact arrived at by the Courts below upon a revision application, unless the Courts below had overlooked essential parts of evidence and acted upon inadmissible and extraneous matters. Court can interfere when findings are not supported by evidence or are perverse and are such as no prudent man could have arrived at on the evidence adduced in the case. The power of High Court in exercise of its revisional jurisdiction is highly restricted. It is not required to reappraise the evidence over again.
The conclusions have been arrived at by the courts below on analysis of factual position. Merely because one of the co-accused has been acquitted that does not per se render the evidence of P.W. I vulnerable. If the evidence of a witness is found to be cogent and credible in respect of one accused merely because an order of acquittal has been directed in respect of another that does not per se render the, evidence of concerned witness suspect.
10. A witness cannot be branded liar, and his evidence discarded on the sole ground that a part of his testimony was not reliable. The maxim 'falsus in uno falsus in omnibus' is neither a sound rule of law nor a rule of practice for the simple reason that one hardly comes across a witness whose evidence does not contain a grain of untruth, or at any rate exaggerations, embroideries or embellishment. That is a rule of caution which requires the Court to scrutinise the evidence carefully. Put differently it must make an attempt to separate grain of truth from chaff of falsehood. If that is possible, conviction can be made on the residual portion of truth after discarding falsehood. However, Court cannot disbelieve substratum of prosecution version or substantial part thereof, and make out a version of its own. I find no merit in this contention raised by the learned counsel for petitioner that the conclusions arrived at factually were not borne out of the materials on record.
11. So far as application of Section 34 is concerned, the evidence of P.W. I clearly shows that the petitioner was one of persons who gave blows on his face, and it resulted in loss of a tooth. That being the case, there is no substance in the plea that the act was not done in furtherance of common intention.
Common intention is an intention to commit the crime actually committed and each accused person can be convicted of that crime only if he has participated in that common intention. The dominant feature of Section 34 is the element of participation in actions. Common intention implies acting in concern. It requires a pre-arranged plan, a meeting of minds. In order that intention may be common, the test which is applied is whether intention of one was known to the other and shared by that other. In a case where assault is not sudden, common intention should be generally presumed unless there is something to show that there was no opportunity for the accused to have a concert. Section 397 regulates the punishment already provided for dacoity, by fixing a minimum term of imprisonment when its commission is attended by the two aggravating specified in the provision. The ingradients required to bring in application of Section 397 are :
(1) the commission of robbery or dacoity as dealt with in Sections 392 and 395 respectively;
(2) the accused
(a) used a deadly weapon, or
(b) caused grievous hurl, or
(c) attempted to cause death or grievous hurt;
(3) he did so at the time of committing the robbery or dacoity. 'Grievous hurt' is defined in Section 320, and designates eight hurts to be grievous. The seventh kind is 'fracture or dislocation of a bone or tooth'. The courts below have rightly held the accused guilty of offences punishable under Sections 394/397 read with Section 34, IPC and under Section 342/34, IPC.
12. So far as question of sentence is concerned, minimum sentence of seven years is prescribed for offence punishable under Section 397, IPC. In that view of the matter, there is no scope to accept the prayer of learned counsel for petitioner for reduction of sentence. The revision is without any merit, and is accordingly dismissed.