It is trite that where the eye witnesses' account is found credible and trustworthy, medical Opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses are the eyes and ears of justice, and hence the importance and primacy of the quality of the trial process. It is erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eye witnesses' account which had to be tested independently and not treated as the 'variable' keeping the medical evidence as the 'constant'. See State of U.P. v. Krishna Gopal AIR 1988 SC2154: (1989 Cri LJ288).%that view of the matter, the unimpeachable evidence of the eye witnesses has to be accepted in preference to the hypothetical answers given by the doctor.
2. Filtering out unnecessary details, the background as depicted by the prosecution is as follows:
On 7-7-1984 in the afternoon, the accused came in two cycles to the entrance of Rampa' Sahi, Aska Road and parked their cycles near! the betel shop of one Bhobani Swain. At that time accused Hrudaya Parida, Subhas Behera and Kedar Behera were armed with a Kati (sharp cutting weapon) each and accused Nirmal Pal was armed with an iron rod. Standing near the betal shop, three of the accused persons asked Hrudaya to go to the house of Laxmi Charan Mohanty (hereinafter described as the 'deceased'), call him and attack him as soon as be comes out of his house, and they would join with him after the attack is given. Accused Hrudaya proceeded up to the house of the deceased and standing in front of his house called him, and abused him in filthy languages. The deceased came out of his house and asked him not to abuse as he had not done anything wrong. Accused Hrudaya, who had concealed a kati behind him, dealt a blow with that on the head of the deceased. Due to the blow the deceased sustained bleeding injury on his head, and fell down. He tried to get up, run away and cried for help. At that time the other accused persons armed with weapons joined accused Hrudaya, who shouted that the deceased was trying to run away and should be killed. Accused Kedar Behera dealt a blow on the left thigh of the deceased which caused bleeding injury, as a result of which he fell down. Accused Subhas Behera gave a blow on the left shoulder of the deceased causing bleeding injury. Hearing the cries of agony, the mother of the deceased came out of her house and raised an alarm and coming close to the deceased lifted his head and keeping the same on her lap sat there. She called her other son Dillip for help. At that time accused Nirmal Pal aimed a blow by means of the iron rod at the deceased and to ward off that blow, the mother of the deceased raised her hand and the blow instead of hitting the deceased hit her hand and caused a bleeding injury. Dillip (P. W. 1) came out of his house hearing the cry of his mother. He also raised an alarm. The accused persons took away the katis which they were holding. But accused Nirmal Pal threw the iron rod at the spot. Accused Hrudaya also could not take his pair of chappals which slipped out of his feet while he hurriedly went away. The brother of the deceased arranged a rickshaw and removed the deceased to M.K.C.G. Medical College Hospital with the help of his mother (P.W. 12), Sila Siva (P.W.6), Lalmohan Behera (P.W. 7) and Lalit Behera (P.W. 8). The last three are eye witnesses to the occurrence. In the Casuality Department of the Hospital, the deceased was examined by a doctor who declared him dead and sent a casuality report to the police station. Dillip (P.W. 1) lodged an oral information at the Berhampur town P.S. The Investigating Officer seized an iron rod, which was a broken piece of an axle (M.O.I) and a pair of chappals (M.O. II). Some blood stained earth and sample earth were also seized. The mother of the deceased Hadi (P.W. 12) was also examined. Post-mortem was conducted at the M.K.C.G. Medical College Hospital. The medical officer who conducted autopsy over the dead body has stated that she found three incised and two small abrasions on the person of the deceased. One of the incised wounds was on the left temporal region on the scalp of size 4" x 1" x bone deep. Out of the other two incised wounds one was on the medial aspect of the left thigh of size 3"x 1/4" x 3" and the other was on the left shoulder joint of size 4 1/2" x l/8"x 1/8". The abrasions were on the dorsum of the right hand and at the base of right index finger. On dissection, she further found that corresponding to the injury on the scalp the left temporalish muscle and temporal bone were cut. She opined that the death of the deceased was due to haemorrhage and shock resulting from the injury to the head, and the injury to the head was sufficient in the ordinary course of nature to cause death.
On completion of investigation charge-sheet was submitted under Sections 302 and 324/ 34, IPC. The learned Sessions Judge framed charge under Section 302/ 34, IPC.
3. The case of accused Nirmal Pal and Kedar Behera was complete denial of the allegations. However, accused Subhas Behera and Hrudaya Parida took a stand that on the date of occurrence, they were proceeding on the Aska Road towards the house of accused Subhas Behera. At that time the deceased came near them being armed with a kati and aimed a blow at Subhas Behera. To ward off that blow accused Hrudaya showed his left hand and the blow fall on his hand and caused a bleeding injury. While the deceased was aiming another blow at Subhas, he receded back and by bringing out a bhujali gave a blow on the head of the deceased by means of the bhujali in self-defence. On receiving that blow the deceased fell down and Subhas ran away and the other accused went away from the spot. All the accused persons also took a plea that the deceased and his family members were suspecting accused Subhas to have illicit relationship with the sister of the deceased, and for that the deceased was entertaining grudge against him and was trying to kill him. Accused Kedar Behera tried to convince the family members of the deceased that accused Sabhas had no such relation with the sister of the deceased; but none helieved him and he was also accused to have a hand in that affair. Thus, while accused Nirmal Pal, Kedar Behera and Hrudaya Parida have denied the allegations levelled against them, the other accused Subhas Behera has come out with a case that he gave one blow on the head of the deceased by means of a Bhujali in self-defence.
4. In order to prove its case, prosecution examined 14 witnesses the description of some of whom has been given above. In addition to P.Ws. 6, 7 and 8 described as eye witnesses, PWs. 1, 12 and one Kuresh Kar (P.W. 10) have stated to have witnessed part of the occurrence. P.W. 8 was believed to have seen major part of the occurrence. On evaluation of evidence of the prosecution witnesses, the learned Sessions Judge came to hold that the guilt of the accused persons has been established beyond a shadow of doubt. Accordingly, he convicted each of them under Section 302/34, IPC. According to him, the evidence clearly establishes that the accused persons assaulted the deceased in furtherance of their common intention to murder him. Even if accused Hrudaya had given the fatal blow, all of them were convicted under Section 302/34, IPC, and sentenced to undergo imprisonment for life.
5. The learned counsel for the accused has urged the following points for consideration:
(i) The evidence of P.Ws. 6, 7 and 8 does not inspire confidence being contradictory. Being friendly with the deceased they are interested witnesses and on that score their evidence becomes impeachable.
(ii) non-examination of independent witnesses like Bhubani Swain and Appa Rao, who are material witnesses creates doubt about the prosecution case.
'(iii)A case under Section 302/34, IPC has not been made out as the common intention to kill the deceased has not been established.
(iv) So far as accused Nirmal is concerned, medical evidence clearly rules out the possibility of his having given the blow as attributed to him.
The learned counsel for State on the other hand contended that the learned Sessions Judge has made an elaborate analysis of the evidence of witnesses and has rightly concluded about guilt of the accused persons. He has further submitted that from the fact that the accused persons came together armed with deadly weapons, sent one of them to call the deceased and after the first blow was given on the head, joined in the assault clearly indicates their intention to kill the deceased and therefore, Section 34 has been rightly applied.
So far as accused Nirmal is concerned, in view of analysis made by the learned Sessions Judge their is no scope for taking a view that the medical evidence is contradictory to the actual evidence. In any event in view of the unimpeachable evidence by the witnesses the medical evidence is inconsequential.
6. We shall first deal with the contention of the learned counser for the accused relating to the acceptability of the evidence of P.Ws. 6, 7 and 8 stated to be eye-witnesses. Criticism has been labelled against them that they were friends of the deceased and therefore, their evidence is tainted with hostility. Prosecution has established that they were also friendly with the accused persons and some of them were co-accused in several cases. Therefore, they cannot be labelled as interested witnesses. This label is frequently used to throw cloud on the evidence. The probation that when eye witnesses to the occurrence were interested persons, there should be corrobo-ration to their evidence by independent evidence cannot be of universal application. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him, falsely. There can be no sweeping generalisation and foundation must be laid for such a criticism that an innocent person is being unnecessarily dragged to face trial. In that view of the matter, the evidence of P.Ws. 6 and 8 does not suffer from any impeachability.
So far as P.W. 6 is concerned, the learned Sessions Judge has found that there is no basis for the allegation that be was either friendly with deceased or hostile to the accused. He has been accepted to be an independent witness.
So far as P.W. 7 is concerned, it is to be noticed that he could not have seen the accused Hrudaya inflicting blows on the head of the deceased. This part of his evidence has been rightly held to be suspicious. But, even if this portion of evidence is not discarded the rest of his evidence about assault by the other accused persons finds corroboration from the evidence of P.Ws. 6 and 8, and P.Ws. 1, 10 and
12. P.W. 6 alone has seen the blow given by Hrudaya on the head of the deceased and P.Ws. 7 and 8 have seen the assaults given to the deceased by the other accused persons. P.W. 10 has stated that he saw the deceased lying on the road and the accused persons standing near him armed with weapons. He has specifically stated about the weapon which each of the accused persons was holding. P.Ws. 1 and 12, namely, the brother and the mother of the deceased came.to the spot towards later part of incident. P.W. 12 herself has received injury by the assault of accused Nirmal. We find that the evidence of the aforesaid witnesses clearly point to the guilt of the accused persons.
7. The next question that arises is what would be the effect of variance between the medical evidence and the ocular evidence. Relying on the evidence of doctor (P.W. 13), who examined the mother of the deceased (P.W. 12) in respect of the injury on her person, it is submitted that the injury was not possible by an iron rod as opined by the doctor, and therefore, there is no evidence against accused Nirmal who is supposed to have give the blow. The learned Sessions Judge while dealing with the plea of the accused Nirmal with reference to the evidence of the doctor observed that the weapon used was not really an iron rod, which expression has been loosely used by the witnesses, but a broken piece of an axle. The witnesses have identified the axle to be the iron rod referred to by them. Being the broken portion of an axle, one and of the same is grooved. That portion is not smooth like an ordinary lathi or iron rod. The ridges between the deep cuts of those grooves extend up to the tip of the rod, and it was possible to cause injury when the blow fell on the hand of P.W. 12. He, however, observed that the prosecution should have asked the Medical Officer showing the weapon of offence whether a blow by the said weapon can produce such an incised injury or not. It any event, in view of the evidence of witnesses accusations against the accused persons were accepted.
It is trite that where the eye witnesses' account is found credible and trustworthy, medical Opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses are the eyes and ears of justice, and hence the importance and primacy of the quality of the trial process. It is erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eye witnesses' account which had to be tested independently and not treated as the 'variable' keeping the medical evidence as the 'constant'. See State of U.P. v. Krishna Gopal AIR 1988 SC2154: (1989 Cri LJ288).%that view of the matter, the unimpeachable evidence of the eye witnesses has to be accepted in preference to the hypothetical answers given by the doctor.
8. Regarding non-examination of some persons it has to be seen, how far that is material. A conviction can be maintained on the basis of the evidence of sole witness. Acceptability of evidence, and not numera- logical sufficiency of witnesses is material. The evidence has to be weighed; number of witnesses is not to be counted. P.Ws. 6, 7, 8 and 10 have not been shown in any way to be: unreliable. Therefore, mere non-examination of some persons does not affect the credibility of the prosecution case.
9. Coming to the question whether Section 34, IPC has any application certain well-laid principles have to be kept in view. The section is intended to meet cases in which it may be difficult to distinguish between the acts of the individual members of a party or to prove exactly what part was taken by each of them in furtherance of the common intention of all. The section is only a rule of evidence and does not create a substantive offence. Therefore, Section 34, IPC would apply even if no charge is framed under that section, provided of course from the evidence it becomes clear that there was pre-arranged plan to achieve the common intended object. See Garib Singh v. State of Punjab 1972 Cri LJ 1286: (AIR 1973 SC460). The section really means that if two or more persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. Common intention is a sine qua non for application of Section 34. It embodies principles of joint liability in doing of a criminal act, essence of which is existence of a common intention. Participation in the commission of offence in furtherance of common intention invites its application. It is well recognised canon of criminal jurisprudence that the Courts cannot distinguish between co-conspirators, nor can they inquire, even if it were possible, as to the part taken by each in the crime. Where the parties go with a common purpose to execute a common object, each and every one becomes responsible for the act of each and every other in execution and furtherance of their common purpose; as the purpose is common, so must be the responsibility. Section 34 is nothing but an explanatory provision and embodies in the Penal Code, the common sense principle that if two or more persons intentionally do a thing jointly it is just the same as if each of them had done it individually. This aspect has been highlighted by one of us (Pasayat, J.) in Dhoba alias Dhuba Sahu v. State of Orissa, (1992) 5 OCR 180. The leading feature of the section is the element of participation in action. The essence of liability under this section is the existence of a common intention animating the offenders and the participation in a criminal act in furtherance of the common intention. The participation need not in all cases be by physical presence. In offences involving physical violence, normally presence at the scene of offence may be necessary, but such is not the case in respect of other offences when the offence consists of diverse acts which may be done at different times and places. The physical presence at the scene of offence of the offender sought to be rendered liable under this section is not one of the conditions of its applicability in every case. See Jaikrishnadas Manohardas Desai v. The State of Bombay : (1960) 3 SCR 319 : (1960 Cri LJ 1250). Two ingredients are to be established before such liability can be fastened. They are (i) there was common intention in the sense of a pre-arranged plan between two or more persons; and (ii) the person sought to be held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, the section cannot apply. The section deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he has done them himself, for 'that act' and 'the act' in the latter part of the section must include the whole action covered by 'a criminal act' in the first part, because they refer to it. 'Common intention' implies a pre-arranged plan and acting in concert pursuant to the plan. Common intention comes into being prior to the commission of the act in point of time. A pre-concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. (See Kripal v. State of Uttar Pradesh, AIR 1954 SC 706 : (1954 Cri LJ 1757)). Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of the crime showing a pre-arranged plan and prior concert. (See Ramaswami v. State of Tamil Nadu, AIR 1976 SC 2027: (1976 Cri LJ 1563)). Undoubtely it is a difficult thing to prove even the intention of an individual and, therefore, it is all the more difficult to show the common intention of a group of persons. However, the same has to be inferred from the fact situation. It can be gathered by the manner in which the accused arrived on the scene and mounted the attack, the determination and concert with which the assault was done or the injuries caused by one or some of them, the acts done by others to assist those causing the injuries, the concerted conduct subsequent to the commission of the offence, for instance all of them left the scene of the incident together and other acts which all or some may have done as would help in determining the common intention. In other words, the totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence of which they could be convicted. It is, however, not necessary to show that any overt act had been done by a particular accused.
10. In the case at hand, the circumstances go to show that the accused persons came together armed with weapons. Great emphasis has been laid by the learned counsel for State on the evidence of P.W. 6 that accused Hrudaya who had given the first blow which turned out to be fatal shouted referring to deceased in derogating terms 'Magia Palauchhi Pranare Maridia' (the deceased was running away, kill him). Hearing this the other accused person rushed towards him and gave various assaults. In out considered opinion, this does not show by itself that there was common intention to kill, which preexisted. We find that after hearing the shout of accused Hrudaya the assaults were made by accused Kedar and Subhas on the thigh and left shoulder of the deceased respectively; Accused Nirmal tried to assault the deceased, but the same was diverted becasue of intervention of the deceased's mother. The fact that the assaults were made cannot lead to a conclusion about the common intention to kill as aforestated. The assaults on the thigh and shoulder is a relevant factor. There is no evidence to show that accused Nirmal had aimed at the head or any other vital part of the body. Therefore, the conviction of Subhas, Kedar and Nirmal under Section 302/34, IPC cannot be maintained. The evidence cleans-ngly establishes that due to assault given by accused Hrudaya on the headline death occurred. From the evidence of the doctor (P.W. 2) it is found that the death was due to shock and haemorrhage resulting from the injury to the head, i.e. external injury No. 2 and its corresponding internal injury. This injury has also been indicated to be sufficient to cause death in the ordinary course of nature. Therefore, accused Hrudaya is to be convicted under Section 302, IPC, and the sentence awarded by the learned Sessions Judge needs no interference. The fact that all the four came together in a group armed with weapons and one of them was sent to give first assualt established pre-concert. Considering the nature of weapons held by them and the injuries caused by all the four, a case under Section 326/34, IPC is clearly made out against all. Since the fatal blow is clearly attributable to accused Hrudaya, be is convicted under Sections 302, and 326/34, IPC. In respect of other three accused Kedar, Subhas and Nirmal, conviction under Section 302/34, IPC is altered to Section 326/34, IPC.
11. Sentence of imprisonment for life awarded to accused Hrudaya is maintained in respect of conviction under Section 302, IPC. No separate sentence is awarded in respect of conviction under Section 326/34, IPC. In respect of other three accused, rigorous imprisonment for ten years would meet the ends of justice. The appeal is dismissed so far as accused Hrudaya is concerned, and allowed in part in respect of other three accused to the extent indicated above.
D.M. Patnaik, J.
12 I agree.
Print Page
Orissa High Court
Kedar Behera And Ors. vs State on 13 July, 1992
Equivalent citations: 1992 CriLJ 378
1. The four appellants (hereinafter described as the 'accused') question legality of the judgment of conviction and sentence passed by the learned Sessions Judge, Ganjam, Berhampur.2. Filtering out unnecessary details, the background as depicted by the prosecution is as follows:
On 7-7-1984 in the afternoon, the accused came in two cycles to the entrance of Rampa' Sahi, Aska Road and parked their cycles near! the betel shop of one Bhobani Swain. At that time accused Hrudaya Parida, Subhas Behera and Kedar Behera were armed with a Kati (sharp cutting weapon) each and accused Nirmal Pal was armed with an iron rod. Standing near the betal shop, three of the accused persons asked Hrudaya to go to the house of Laxmi Charan Mohanty (hereinafter described as the 'deceased'), call him and attack him as soon as be comes out of his house, and they would join with him after the attack is given. Accused Hrudaya proceeded up to the house of the deceased and standing in front of his house called him, and abused him in filthy languages. The deceased came out of his house and asked him not to abuse as he had not done anything wrong. Accused Hrudaya, who had concealed a kati behind him, dealt a blow with that on the head of the deceased. Due to the blow the deceased sustained bleeding injury on his head, and fell down. He tried to get up, run away and cried for help. At that time the other accused persons armed with weapons joined accused Hrudaya, who shouted that the deceased was trying to run away and should be killed. Accused Kedar Behera dealt a blow on the left thigh of the deceased which caused bleeding injury, as a result of which he fell down. Accused Subhas Behera gave a blow on the left shoulder of the deceased causing bleeding injury. Hearing the cries of agony, the mother of the deceased came out of her house and raised an alarm and coming close to the deceased lifted his head and keeping the same on her lap sat there. She called her other son Dillip for help. At that time accused Nirmal Pal aimed a blow by means of the iron rod at the deceased and to ward off that blow, the mother of the deceased raised her hand and the blow instead of hitting the deceased hit her hand and caused a bleeding injury. Dillip (P. W. 1) came out of his house hearing the cry of his mother. He also raised an alarm. The accused persons took away the katis which they were holding. But accused Nirmal Pal threw the iron rod at the spot. Accused Hrudaya also could not take his pair of chappals which slipped out of his feet while he hurriedly went away. The brother of the deceased arranged a rickshaw and removed the deceased to M.K.C.G. Medical College Hospital with the help of his mother (P.W. 12), Sila Siva (P.W.6), Lalmohan Behera (P.W. 7) and Lalit Behera (P.W. 8). The last three are eye witnesses to the occurrence. In the Casuality Department of the Hospital, the deceased was examined by a doctor who declared him dead and sent a casuality report to the police station. Dillip (P.W. 1) lodged an oral information at the Berhampur town P.S. The Investigating Officer seized an iron rod, which was a broken piece of an axle (M.O.I) and a pair of chappals (M.O. II). Some blood stained earth and sample earth were also seized. The mother of the deceased Hadi (P.W. 12) was also examined. Post-mortem was conducted at the M.K.C.G. Medical College Hospital. The medical officer who conducted autopsy over the dead body has stated that she found three incised and two small abrasions on the person of the deceased. One of the incised wounds was on the left temporal region on the scalp of size 4" x 1" x bone deep. Out of the other two incised wounds one was on the medial aspect of the left thigh of size 3"x 1/4" x 3" and the other was on the left shoulder joint of size 4 1/2" x l/8"x 1/8". The abrasions were on the dorsum of the right hand and at the base of right index finger. On dissection, she further found that corresponding to the injury on the scalp the left temporalish muscle and temporal bone were cut. She opined that the death of the deceased was due to haemorrhage and shock resulting from the injury to the head, and the injury to the head was sufficient in the ordinary course of nature to cause death.
On completion of investigation charge-sheet was submitted under Sections 302 and 324/ 34, IPC. The learned Sessions Judge framed charge under Section 302/ 34, IPC.
3. The case of accused Nirmal Pal and Kedar Behera was complete denial of the allegations. However, accused Subhas Behera and Hrudaya Parida took a stand that on the date of occurrence, they were proceeding on the Aska Road towards the house of accused Subhas Behera. At that time the deceased came near them being armed with a kati and aimed a blow at Subhas Behera. To ward off that blow accused Hrudaya showed his left hand and the blow fall on his hand and caused a bleeding injury. While the deceased was aiming another blow at Subhas, he receded back and by bringing out a bhujali gave a blow on the head of the deceased by means of the bhujali in self-defence. On receiving that blow the deceased fell down and Subhas ran away and the other accused went away from the spot. All the accused persons also took a plea that the deceased and his family members were suspecting accused Subhas to have illicit relationship with the sister of the deceased, and for that the deceased was entertaining grudge against him and was trying to kill him. Accused Kedar Behera tried to convince the family members of the deceased that accused Sabhas had no such relation with the sister of the deceased; but none helieved him and he was also accused to have a hand in that affair. Thus, while accused Nirmal Pal, Kedar Behera and Hrudaya Parida have denied the allegations levelled against them, the other accused Subhas Behera has come out with a case that he gave one blow on the head of the deceased by means of a Bhujali in self-defence.
4. In order to prove its case, prosecution examined 14 witnesses the description of some of whom has been given above. In addition to P.Ws. 6, 7 and 8 described as eye witnesses, PWs. 1, 12 and one Kuresh Kar (P.W. 10) have stated to have witnessed part of the occurrence. P.W. 8 was believed to have seen major part of the occurrence. On evaluation of evidence of the prosecution witnesses, the learned Sessions Judge came to hold that the guilt of the accused persons has been established beyond a shadow of doubt. Accordingly, he convicted each of them under Section 302/34, IPC. According to him, the evidence clearly establishes that the accused persons assaulted the deceased in furtherance of their common intention to murder him. Even if accused Hrudaya had given the fatal blow, all of them were convicted under Section 302/34, IPC, and sentenced to undergo imprisonment for life.
5. The learned counsel for the accused has urged the following points for consideration:
(i) The evidence of P.Ws. 6, 7 and 8 does not inspire confidence being contradictory. Being friendly with the deceased they are interested witnesses and on that score their evidence becomes impeachable.
(ii) non-examination of independent witnesses like Bhubani Swain and Appa Rao, who are material witnesses creates doubt about the prosecution case.
'(iii)A case under Section 302/34, IPC has not been made out as the common intention to kill the deceased has not been established.
(iv) So far as accused Nirmal is concerned, medical evidence clearly rules out the possibility of his having given the blow as attributed to him.
The learned counsel for State on the other hand contended that the learned Sessions Judge has made an elaborate analysis of the evidence of witnesses and has rightly concluded about guilt of the accused persons. He has further submitted that from the fact that the accused persons came together armed with deadly weapons, sent one of them to call the deceased and after the first blow was given on the head, joined in the assault clearly indicates their intention to kill the deceased and therefore, Section 34 has been rightly applied.
So far as accused Nirmal is concerned, in view of analysis made by the learned Sessions Judge their is no scope for taking a view that the medical evidence is contradictory to the actual evidence. In any event in view of the unimpeachable evidence by the witnesses the medical evidence is inconsequential.
6. We shall first deal with the contention of the learned counser for the accused relating to the acceptability of the evidence of P.Ws. 6, 7 and 8 stated to be eye-witnesses. Criticism has been labelled against them that they were friends of the deceased and therefore, their evidence is tainted with hostility. Prosecution has established that they were also friendly with the accused persons and some of them were co-accused in several cases. Therefore, they cannot be labelled as interested witnesses. This label is frequently used to throw cloud on the evidence. The probation that when eye witnesses to the occurrence were interested persons, there should be corrobo-ration to their evidence by independent evidence cannot be of universal application. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him, falsely. There can be no sweeping generalisation and foundation must be laid for such a criticism that an innocent person is being unnecessarily dragged to face trial. In that view of the matter, the evidence of P.Ws. 6 and 8 does not suffer from any impeachability.
So far as P.W. 6 is concerned, the learned Sessions Judge has found that there is no basis for the allegation that be was either friendly with deceased or hostile to the accused. He has been accepted to be an independent witness.
So far as P.W. 7 is concerned, it is to be noticed that he could not have seen the accused Hrudaya inflicting blows on the head of the deceased. This part of his evidence has been rightly held to be suspicious. But, even if this portion of evidence is not discarded the rest of his evidence about assault by the other accused persons finds corroboration from the evidence of P.Ws. 6 and 8, and P.Ws. 1, 10 and
12. P.W. 6 alone has seen the blow given by Hrudaya on the head of the deceased and P.Ws. 7 and 8 have seen the assaults given to the deceased by the other accused persons. P.W. 10 has stated that he saw the deceased lying on the road and the accused persons standing near him armed with weapons. He has specifically stated about the weapon which each of the accused persons was holding. P.Ws. 1 and 12, namely, the brother and the mother of the deceased came.to the spot towards later part of incident. P.W. 12 herself has received injury by the assault of accused Nirmal. We find that the evidence of the aforesaid witnesses clearly point to the guilt of the accused persons.
7. The next question that arises is what would be the effect of variance between the medical evidence and the ocular evidence. Relying on the evidence of doctor (P.W. 13), who examined the mother of the deceased (P.W. 12) in respect of the injury on her person, it is submitted that the injury was not possible by an iron rod as opined by the doctor, and therefore, there is no evidence against accused Nirmal who is supposed to have give the blow. The learned Sessions Judge while dealing with the plea of the accused Nirmal with reference to the evidence of the doctor observed that the weapon used was not really an iron rod, which expression has been loosely used by the witnesses, but a broken piece of an axle. The witnesses have identified the axle to be the iron rod referred to by them. Being the broken portion of an axle, one and of the same is grooved. That portion is not smooth like an ordinary lathi or iron rod. The ridges between the deep cuts of those grooves extend up to the tip of the rod, and it was possible to cause injury when the blow fell on the hand of P.W. 12. He, however, observed that the prosecution should have asked the Medical Officer showing the weapon of offence whether a blow by the said weapon can produce such an incised injury or not. It any event, in view of the evidence of witnesses accusations against the accused persons were accepted.
It is trite that where the eye witnesses' account is found credible and trustworthy, medical Opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses are the eyes and ears of justice, and hence the importance and primacy of the quality of the trial process. It is erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eye witnesses' account which had to be tested independently and not treated as the 'variable' keeping the medical evidence as the 'constant'. See State of U.P. v. Krishna Gopal AIR 1988 SC2154: (1989 Cri LJ288).%that view of the matter, the unimpeachable evidence of the eye witnesses has to be accepted in preference to the hypothetical answers given by the doctor.
8. Regarding non-examination of some persons it has to be seen, how far that is material. A conviction can be maintained on the basis of the evidence of sole witness. Acceptability of evidence, and not numera- logical sufficiency of witnesses is material. The evidence has to be weighed; number of witnesses is not to be counted. P.Ws. 6, 7, 8 and 10 have not been shown in any way to be: unreliable. Therefore, mere non-examination of some persons does not affect the credibility of the prosecution case.
9. Coming to the question whether Section 34, IPC has any application certain well-laid principles have to be kept in view. The section is intended to meet cases in which it may be difficult to distinguish between the acts of the individual members of a party or to prove exactly what part was taken by each of them in furtherance of the common intention of all. The section is only a rule of evidence and does not create a substantive offence. Therefore, Section 34, IPC would apply even if no charge is framed under that section, provided of course from the evidence it becomes clear that there was pre-arranged plan to achieve the common intended object. See Garib Singh v. State of Punjab 1972 Cri LJ 1286: (AIR 1973 SC460). The section really means that if two or more persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. Common intention is a sine qua non for application of Section 34. It embodies principles of joint liability in doing of a criminal act, essence of which is existence of a common intention. Participation in the commission of offence in furtherance of common intention invites its application. It is well recognised canon of criminal jurisprudence that the Courts cannot distinguish between co-conspirators, nor can they inquire, even if it were possible, as to the part taken by each in the crime. Where the parties go with a common purpose to execute a common object, each and every one becomes responsible for the act of each and every other in execution and furtherance of their common purpose; as the purpose is common, so must be the responsibility. Section 34 is nothing but an explanatory provision and embodies in the Penal Code, the common sense principle that if two or more persons intentionally do a thing jointly it is just the same as if each of them had done it individually. This aspect has been highlighted by one of us (Pasayat, J.) in Dhoba alias Dhuba Sahu v. State of Orissa, (1992) 5 OCR 180. The leading feature of the section is the element of participation in action. The essence of liability under this section is the existence of a common intention animating the offenders and the participation in a criminal act in furtherance of the common intention. The participation need not in all cases be by physical presence. In offences involving physical violence, normally presence at the scene of offence may be necessary, but such is not the case in respect of other offences when the offence consists of diverse acts which may be done at different times and places. The physical presence at the scene of offence of the offender sought to be rendered liable under this section is not one of the conditions of its applicability in every case. See Jaikrishnadas Manohardas Desai v. The State of Bombay : (1960) 3 SCR 319 : (1960 Cri LJ 1250). Two ingredients are to be established before such liability can be fastened. They are (i) there was common intention in the sense of a pre-arranged plan between two or more persons; and (ii) the person sought to be held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, the section cannot apply. The section deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he has done them himself, for 'that act' and 'the act' in the latter part of the section must include the whole action covered by 'a criminal act' in the first part, because they refer to it. 'Common intention' implies a pre-arranged plan and acting in concert pursuant to the plan. Common intention comes into being prior to the commission of the act in point of time. A pre-concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. (See Kripal v. State of Uttar Pradesh, AIR 1954 SC 706 : (1954 Cri LJ 1757)). Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of the crime showing a pre-arranged plan and prior concert. (See Ramaswami v. State of Tamil Nadu, AIR 1976 SC 2027: (1976 Cri LJ 1563)). Undoubtely it is a difficult thing to prove even the intention of an individual and, therefore, it is all the more difficult to show the common intention of a group of persons. However, the same has to be inferred from the fact situation. It can be gathered by the manner in which the accused arrived on the scene and mounted the attack, the determination and concert with which the assault was done or the injuries caused by one or some of them, the acts done by others to assist those causing the injuries, the concerted conduct subsequent to the commission of the offence, for instance all of them left the scene of the incident together and other acts which all or some may have done as would help in determining the common intention. In other words, the totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence of which they could be convicted. It is, however, not necessary to show that any overt act had been done by a particular accused.
10. In the case at hand, the circumstances go to show that the accused persons came together armed with weapons. Great emphasis has been laid by the learned counsel for State on the evidence of P.W. 6 that accused Hrudaya who had given the first blow which turned out to be fatal shouted referring to deceased in derogating terms 'Magia Palauchhi Pranare Maridia' (the deceased was running away, kill him). Hearing this the other accused person rushed towards him and gave various assaults. In out considered opinion, this does not show by itself that there was common intention to kill, which preexisted. We find that after hearing the shout of accused Hrudaya the assaults were made by accused Kedar and Subhas on the thigh and left shoulder of the deceased respectively; Accused Nirmal tried to assault the deceased, but the same was diverted becasue of intervention of the deceased's mother. The fact that the assaults were made cannot lead to a conclusion about the common intention to kill as aforestated. The assaults on the thigh and shoulder is a relevant factor. There is no evidence to show that accused Nirmal had aimed at the head or any other vital part of the body. Therefore, the conviction of Subhas, Kedar and Nirmal under Section 302/34, IPC cannot be maintained. The evidence cleans-ngly establishes that due to assault given by accused Hrudaya on the headline death occurred. From the evidence of the doctor (P.W. 2) it is found that the death was due to shock and haemorrhage resulting from the injury to the head, i.e. external injury No. 2 and its corresponding internal injury. This injury has also been indicated to be sufficient to cause death in the ordinary course of nature. Therefore, accused Hrudaya is to be convicted under Section 302, IPC, and the sentence awarded by the learned Sessions Judge needs no interference. The fact that all the four came together in a group armed with weapons and one of them was sent to give first assualt established pre-concert. Considering the nature of weapons held by them and the injuries caused by all the four, a case under Section 326/34, IPC is clearly made out against all. Since the fatal blow is clearly attributable to accused Hrudaya, be is convicted under Sections 302, and 326/34, IPC. In respect of other three accused Kedar, Subhas and Nirmal, conviction under Section 302/34, IPC is altered to Section 326/34, IPC.
11. Sentence of imprisonment for life awarded to accused Hrudaya is maintained in respect of conviction under Section 302, IPC. No separate sentence is awarded in respect of conviction under Section 326/34, IPC. In respect of other three accused, rigorous imprisonment for ten years would meet the ends of justice. The appeal is dismissed so far as accused Hrudaya is concerned, and allowed in part in respect of other three accused to the extent indicated above.
D.M. Patnaik, J.
12 I agree.
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