J.B. Koshy, J.
1. Appellants in Crl.A. No. 1050/2003 were convicted under Section 302 read with Section 34 of the Indian Penal Code and sentenced to undergo imprisonment for life each with a fine of Rs. 20,000/- each and in default of fine to undergo rigorous imprisonment for three years each. Altogether six persons were charge sheeted for the offences punishable under Sections 143, 147, 148 and 302 read with Section 149 of I.P.C. The Sessions Court acquitted accused 4 to 6 of all the offences and also acquitted accused 1 to 3 of offences under Sections 143, 147, 148 and 149 of I.P.C, but convicted them under Section 302 read with Section 34 of I.P.C. Against the acquittal of the accused 4 to 6, P.W.1 filed Crl.R.P. No. 2450/2004 and both the cases were heard together.
2. The prosecution case was that P.W.1 along with deceased Jose had been running toddy shops at the places, namely, Vellilappally, Vellakkada and Chakkampuzha Nirappu in the year 1999. The accused persons who were the toddy tappers in the said toddy shops arrived at the toddy shop No. T.S. 115 at Vellakkada at about 6 p.m. on 23.8.1999 and the first accused asked P.W.1 regarding the delayed Onam Bonus to be paid. P.W.I replied that the deceased Jose would come with the amount. Thereupon the first accused stated that they would not go back unless they were told about the payment of the amount. Thereafter, the accused persons moved to the adjacent mud road. After about 20 minutes they proceeded towards the main road and when they reached the mud road on the northern side of the house of P.W.2, Jose came. The accused persons formed themselves into an unlawful assembly armed with deadly weapons like knife, sticks etc. and picked up a quarrel with the deceased Jose for the payment of bonus. The first accused seized hold of the neck of Jose, who, after getting himself free from the grip of the first accused, moved to the courtyard of the cattle-shed on the eastern side of the aforesaid house. While so, the third accused beat Jose with M.O.5 stick, but Jose warded off the beating with M.O.7 bucket. The fourth accused hit Jose with M.O.6 stick. The first accused asked and instructed his younger brother, the 2nd accused, to kill Jose. In response to the instruction given by the first accused, the second accused took out M.O 3 knife from his hip and loin and stabbed Jose on the right side of the back of his chest with the intention of killing him. The fifth accused directed his course quickly towards Jose with a knife to stab Jose. However, P.W.1 prevented him from stabbing Jose and P.W. 1 received the knife from the fifth accused and, threw it away. Hearing the hue and cry from the place of incident, people gathered there and at that time the sixth accused asked other accused persons to run away. Accordingly, the accused persons escaped from that place in the direction of the main road. Subsequently the injured Jose was taken to the Pala Government Hospital where he was given first aid and after that as per the instructions of the doctor in the Government Hospital, Jose was taken to the Medical College Hospital, Kottayam where he succumbed to his injuries while undergoing treatment at about 8.30 a.m. on 24.8.1999.
3. P.Ws.1 to 4 are occurrence witnesses. M.O.3 knife alleged to have been used by A2 was recovered on the basis of the confession given by A2. P.W.5 doctor gave initial treatment and PW.6 conducted post-mortem examination on the body of deceased Jose. P.W.1, elder brother of deceased Jose is a witness to the incident and he gave Ext.P1 F.I. Statement to the police. He deposed that he and his deceased brother Jose had been running toddy shops in three places and accused persons were toddy tappers in their toddy shops. On 23.8.1999 at about 6.30 p.m. the incident occurred. At about 6 p.m. all the accused persons came to the toddy shop at Vellakkada and asked whether the Manager was there. The deceased was managing the shop. First accused then asked P.W. 1 regarding the money due to them Then PW.1 replied that Jose would come with money. Then the first accused uttered Thereafter, they moved to the road. After some time he heard hue and cry from the place near the house of P.W.2 Gopi. When he reached there, he saw the bike of his brother was stopped by the first accused. He moved to that place quickly. The first accused was holding Jose by neck. Jose after freeing from the grip of the first accused ran to the courtyard of the cattle-shed of P.W.2 which is near the road. The third accused beat him with a stick. But, the deceased warded off the blow with a bucket. The fourth accused then beat him. P.W.1 was trying to prevent the accused persons from attacking Jose. Then the first accused asked the second accused Immediately, the second accused took a knife from his loin and stabbed the deceased. Fifth accused also tried to stab him, but PW.1 prevented him and took the knife from him and threw it away. Hearing the hue and cry people gathered there. At that time, the sixth accused exhorted the others to run away and all the accused persons ran away. The injured also stated Thereafter a car was arranged and he was taken to the Government Hospital, Pala and from there to Medical College Hospital, Kottayam. Though an operation was conducted, on the next day morning at about 8.30a.m. he passed away. According to P.W. 1, the incident occurred due to delay in payment of bonus. P.W.1 identified the shirt and dothi of the deceased which were marked as M.O.1 and M.O.2. M.O.3 knife used by A2 was also identified. M.O.4 was identified as the knife used by the fifth accused. M.O.5 was identified as the coffee stick used by the third accused. A stick of the rubber tree used by the fourth accused was identified and marked as M.O.6. The bucket and handle, which were used by the deceased Jose to ward off the blows, were marked as M.O.7 and M.O.8. The dresses owned by A1 to A6 were marked as M.O.9 to M.O.15. M.O.16 and M.O.17 were identified as rubber slippers worn by the deceased. During cross-examination of P.W.1, it has come out in evidence that the workers demanded Rs. 30,000/- and it was agreed to pay Rs. 25,680/-. But, it was not paid till the evening of the previous day of Onam and the accused persons went there demanding the same. P.W. 1 stated that Jose would come with the money. There is no evidence to show that whether Jose actually came with the money or not. But, when he came in his bike, the incident occurred.
4. P.W.2 is Gopi in whose compound the incident occurred. According to him, he was seeing television. Then he heard hue and cry from the courtyard of his cattle shed. He came out of the house. He saw eight persons engaged in a scuffle. He stated that A1 to A6, deceased as well as P.W. 1 were the eight persons. He also stated that P.W.1 was trying to pacify. He stated as follows:
'P.W.1
P.W.3 also deposed like P.W. 1. From the very beginning of the incident, i.e. from asking of money by the accused as bonus to P.W.1, he is a natural witness, being a salesman in the toddy shop. He deposed that the accused told P.W.1 He further deposed that when P.W.1 ran to the place of incident, he also went there and regarding the incident P.W.3 deposed like P.W.1. He also deposed that he heard the first accused asking the second accused and the the second accused stabbed him. P.W.4 is a headload worker. He deposed that he has seen the incident, and he saw A2 stabbing the deceased with M.O.3. He also deposed that among the group one person uttered He also identified M.O.3 used by A2. Even though P.Ws.1 to 4 were cross-examined, their evidence was not shattered. Prosecution case is proved very clearly by the occurrence witnesses. The defence tried to argue that P.W.3 stated that he saw a group clash But, that is also not correct. He explained that he saw all the accused beating and fisting the deceased.
P.W.4 also stated that all were beating one person, The totality of the evidence would show that deceased Jose Was attacked by about six persons and finally A2 stabbed him. P.W.1 tried to pacify and tried to ward off the blows.
5. Now we will consider medical evidence. P.W.5 who issued Ext.P2 wound certificate noted the following injury:
'Incised penetrating wound 3x2 cms. extending obliquely downwards to chest cavity requiring exploration.'
P.W.6 who conducted post-mortem examination issued Ext.P3 certificate which shows the following injuries:
'(1) Sutured incised penetrating wound 6x1.5cms. obliquely placed on the right side of the back of chest. Its upper inner end showed splitting of tissues which was 22 cm. below the root of neck and 1.5 cm. outer to the midline. The other end was sharply cut with a drainage tube insitu. The chest wall was penetrated through the 9th intercostal space and partly cutting the upper border of 10th rib. Piercing through the lower lobe of right lung and the diaphragm the wound terminated in the upper surface of the right lobe of liver for a depth of 2cm. The wound was directed forwards, downwards and to the right for a total minimum depth of 9 cm. Right lung was completely adherent to the chest wall. Right chest cavity contained 1000 ml. of blood with clots.
(2) Contused abrasion 13 x 6 x 0.5 cms. on the left side of the back of chest 4 cm. outer to the midline and 10cm. below the top of shoulder.
(3) Surgical sutured laprotomy wound 22 cm. long, obliquely placed on the right side of the abdomen exploring into the abdominal cavity. The upper inner end of the wound' was 10 cm. below the lower end of sternum.
(4) Surgical sutured drainage wound 3x5 cm. long obliquely placed on the outer aspect of the right side of the chest. Its upper inner end was 11 cm. below armpit.
(5) Surgical sutured drainage wound 4.5 cm. long nearly horizontal on the outer aspect of right side of the chest 3 cm. above the injury No. 4.'
P.W.6 deposed that in the ordinary course of nature, injury No. 1 is sufficient to cause the death and injury No. 1 could be caused by M.O.3 weapon. According to P.W.6, injury No. 2 could be caused by M.O.5 stick and injury Nos. 3 to 5 are surgical wounds.
6. P.W.7 was the Investigating Officer. He explained the details of investigation. M.O.3 knife was recovered on the basis of the confession made by the accused. P.W.13 is a mahazar witness to Ext.P11 mahazar which is regarding the recovery of M.O.3 knife and M.O.10 lungi. The lungi recovered at the instance of A2 as well as M.O.3 knife were blood stained as per Ext. P18 certificate of medical analysis. The evidence of eye-witnesses are very clear and cogent that the deceased died due to the stab injury caused with M.O.3 knife used by A2 in the scuffle occurred regarding disputed late payment of Onam bonus and it was done at the instigation of the first accused. The evidence of occurrence witnesses is corroborated by medical evidence as well as the recovery and even dying declaration. It is true that all the accused joined in attacking the deceased. There is no dispute regarding identification of workers of P.W.1 and the deceased. However, there is no evidence in this case so as to gather a finding that all the accused persons gathered together with a common object of murdering the deceased or such a common object was developed and shared by them subsequently. At the maximum they have an intention to threaten or intimidate Jose for delayed payment of bonus. The expression 'in prosecution of common object' as appearing in Section 149 has to be strictly construed as equivalent to 'in order to attain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. Further, the word 'knew' used in the second limb of the section implies something more than a possibility and it cannot be made to bear the sense of 'might have been known'. Positive knowledge is necessary. Whether the members of the assembly shared a common object can be gathered only from surrounding circumstances. In Gangadhar Behera and Ors. v. State of Orissa (2002 AIR SCW 4271) the Supreme Court held as follows:
'23. 'Common object' is different from a 'common intention' as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The 'common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident.'
The only evidence proved is thatA1 exhorted A2 to do away with the deceased. A-2 was having a knife and he immediately stabbed the deceased with the knife (M.O.3) as a result of which he died. There is no circumstance in this case to assume that accused other than A1 & A2 knew that A2 will stab him. There was also no time to prevent him from doing so by the other accused or P.W.1 who was present there. In the circumstances, acquittal of A4 to A6 needs no interference. With regard to A3 also there is no evidence to show that he shared the common object of killing the deceased. A3 only beat him with a stick. There is no evidence in this case that A3 has done the same in furtherance of the common intention of killing the deceased with the help of A1 & A2. There was no pre-arranged plan to kill the deceased. Even though, in the course of attack, A1 and A2 developed a common intention to kill the deceased, other accused were not party to the same. As held by the Supreme Court in Hiralal Mallick v. State of Bihar (AIR 1977 SC 2236) even though some persons may start with a pre-arranged plan to commit a minor offence, they may in the course come to an understanding to commit a major offence as well. If such understanding appears from the conduct of the person sought to be made vicariously liable for the act of the principal culprit or from some other incriminatory evidence, all the persons will be liable under Section 34, because of the constructive liability. But, in the absence of such material, the companion or companions cannot justifiably be held guilty for every offence committed by the principal offender or offenders. Common intention to commit an offence graver than the one originally designed may develop during the execution of the original plan. But, evidence in that behalf should be clear and cogent, for suspicion, however strong, cannot take place of proof which is essential to bring home the offence to the accused. Justice Krishna Iyer (J) in the above case observed as follows:
'..........Merely because of the fatal outcome, even those whose intention, otherwise made out to be far less than homicidal, cannot by hindsight reading, be meant to have had a murderous or kindred mens rea.'
The offence committed by A3 will only come under Section 324 I.P.C. He has already suffered imprisonment for more than one year as punishment and we are of the opinion that, that is sufficient punishment for A3 for the offence under Section 324 I.P.C. When A1 and A2 are concerned, there is clear evidence that they shared the common intention and A1 exhorted A2 to stab the deceased and thus the injury caused. The main contention raised by the learned counsel for the defence is that during the scuffle this happened and the punishment can be only covered under Section 304 I.P.C. But, the evidence of P.Ws.1 to 4 clearly indicate that there was no fight between the parties and the accused persons were attacking the deceased. P.W.1 tried to pacify and the deceased warded off the blows with a bucket etc. Therefore, it cannot be stated that the stabbing occurred during a sudden fight. In fact accused were agitated for the delayed payment of bonus which finally resulted in the death of Jose. It is very clear that accused were the aggressors and there is no case that P.W.1 or the deceased was armed with weapon. But, it has come out in evidence that A2 was armed with the murderous weapon which was recovered on the basis of the disclosure of A2 and at the instigation of A1, A2 inflicted the fatal injury. In Damodar v. State of U.P. (2004 (8) Supreme 136) Apex Court held that exhortation by one accused to co-accused to kill can be construed as common intention to kill to attract Section 34.
7. In the above circumstances, we confirm the conviction of A1 and A2 under Section 302 read with Section 34 I.P.C. Therefore, sentence of imprisonment for life is also confirmed. But, we reduce the fine amount from Rs. 20,000/- to Rs. 10,000/- each with a default sentence of simple imprisonment for six months each. Conviction and sentence of A3 under Section 302 read with Section 34 of I.P.C. is set aside. He is convicted under Section 324 I.P.C. Imprisonment he has already suffered is treated as his sentence for the offence under Section 324. A3 is directed to be released forthwith, if he is not required in any other case.
The Criminal Appeal is allowed partly and the Crl.R.P. is dismissed.