L.MOHAPATRA, J & C.R.DASH, J. JCRA NO.36 OF 2001 (Decided on 24.11.2010) PARSU MUNDA …………. Appellant. .Vrs. STATE OF ORISSA …………. Respondent. PENAL CODE, 1860 (ACT NO.45 OF 1860) – SEC.34. For Appellants - M/s. Siladitya Ray, C.R.Nandi, N.R.Tripathy, B.L.Tripathy, Binapani Tripathy & Nandini Tripathy. For Respondent - Additional Government Advocate Learned trial court found the appellant and his brother Soma Munda guilty of offence under section 302/34 I.P.C. and sentenced each of them there under to suffer imprisonment for life. The judgment and order of sentence passed by learned Sessions Judge, Sundargarh in S.T. No.13 of 1997 is impugned in this appeal. 2. The occurrence happened at about 11.00 P.M. in the night of 23.9.1996 in the house of deceased Saranga Munda. The prosecution case as revealed from the record is that at the relevant time deceased Saranga Munda and his wife (P.W.7) were sleeping on the verandah of their house. Both the convicts, the present appellant and his brother Soma Munda (who according to the report from the offence has not preferred any appeal) entered inside the house breaking open the door. The present appellant Parsu Munda gave two to three staps on the cheek of the deceased Saranga Munda and Co-convict Soma Munda gave blow to the chest of the deceased by a knife. It is further alleged that after such assault both the convicts pushed the deceased inside the house and fled away from the spit. On the basis of the report lodged by Birju Munda (P.W.1), who happens to be the son of the deceased, the present case was registered and P.W.11 took up investigation, who on completion of investigation filed charge-sheet implicating the present appellant and his brother Soma Munda in offence under Section 302/34. I.P.C. 3. Prosecution has examined 11 witnesses to prove the charge leveled against the appellant and his co-convict. P.Ws. 1 to 7 are asserted to be the eye witnesses to the occurrence. P.Ws. 8 and 10 are witnesses to some relevant seizures. P.W.9 is the Medical Officer, who conducted post-mortem examination on the dead body of the deceased and P.W.11 is the Investigating Officer. The defence plea is one of complete denial of the charge but none was examined on behalf of the defence. 4. Learned trial court has returned finding of guilt against the appellant and his brother on the basis of the evidence of P.Ws.6 and 7, who are son and wife respectively of the deceased. On thorough consideration of the evidence of P.Ws. 1 to 5 and cross- reference to the evidence of the Investigating Officer (P.W.11), learned trial Court has rightly disbelieved P.Ws. 1 to 5 as eye witnesses to the occurrence inasmuch as all of them have been contradicted under Section 145 of the Evidence Act, so far as their assertion to have witnessed the occurrence is concerned. 5. Learned counsel for the appellant submits that there being discrepancies in evidence of P.Ws. 6 and 7 and there being no corroboration of their evidence in material particulars, learned trial court has erred in recording conviction against the appellant under Section 302/34, I.P.C. Alternatively, it is contended that even if P.Ws. 6 and 7 are believed, the present appellant should not have been convicted under Section 302, I.P.C. by aid of Section 34 thereof, because it is the consistent prosecution case that the present-appellant gave only two/three slaps to the deceased. Learned Addl. Government Advocate on the other hand supports the impugned judgment. 6. Admittedly, the occurrence happened inside the house of the deceased. The present appellant is the son-in-law of the deceased, he being the husband of P.W.3, who is one of the daughters of the deceased. It is further admitted that the occurrence happened at about 11.00 P.M. in the night. From the evidence of the witnesses, i.e. P.Ws.1 to 7, it is clear that by the time of occurrence all inmates in the house had already retired to sleep and the deceased at that time was sleeping along with his wife (P.W.7) on the verandah of the house. The appellant and his brother are alleged to have entered inside the house by breaking open the door. It is the consistent prosecution case that the present appellant only gave two to three slaps on the cheek of the deceased and thereafter his brother Soma Munda assaulted the deceased by the knife he was holding. Learned trial court has convicted the present appellant by aid of Section 34, I.P.C. 7. It is well settled in law that in order to attract Section 34, I.P.C., it is not sufficient to prove that each of the participating culprits had the same intention to commit a certain act. What is the requisite ingredient of Section 34 I.P.C. is that each must share the intention of the other. It may be that when some persons start with a pre-arranged plan to commit a minor offence, they may in the course of their committing the minor offence come to an understanding to commit the major offence as well. Such an understanding may appear from the conduct of the persons sought to be made vicariously liable for the at of the principal culprit or from some other incriminatory evidence but the conduct or other evidence must be such as not to leave any room for doubt in that behalf. A criminal court fastening vicarious liability must satisfy itself as to the prior meeting of minds of the principal culprit and his companions, who are sought to be constructively made liable in respect of every act committed by the former. There is no law which lays down that a person accompanying the principal culprit shares his intention in respect of every act which the latter might eventually commit. It is further well settled in law that “common intention” is a question of fact and the existence or otherwise of the same depends upon the facts and circumstances of each case. 8. Coming to the evidence in the present case, we on careful scrutiny of the evidence of P.Ws.1 to 5 and on cross-reference to the evidence of the Investigating Officer (P.W.11), are satisfied that the learned trial court has rightly disbelieved P.Ws. 1 to 5 as eye witnesses to the occurrence. He has based the conviction of the appellant and his co-convict on the basis of the evidence of P.Ws. 6 and 7, P.W.7, who is the wife of the deceased has testified that in the night she and her husband had slept on the verandah of the house; the appellant and his brother entered inside the house by breaking open the door and all of a sudden the present appellant gave a slap to her husband and then accused Soma gave a knife blow on the chest of her husband. She has further testified that out of fear she fled away from the verandah. P.W.6, who is the son of the deceased, has testified that in the night of occurrence his father was sleeping and he heard somebody breaking the door of the verandah; he came out and found 2 Parsu (present appellant) breaking the door of the verandah and with him accused Soma was present. He has further testified that the present appellant gave a slap to his father and accused Soma pierced a knife over the chest of his father. P.W.6 has further testified that after the assault the appellant and his brother pushed his father inside the house and seeing that he fled from the house apprehending danger. There is no effective cross-examination of the aforesaid two witnesses regarding their presence in the spot house or regarding the scope on their part to see the occurrence in the moonlit night. They are also corroborated by the Medical Officer (P.W.9). From the evidence of the aforesaid two witnesses it is clear that the appellant and his brother came to the spot house, but we are not able to accept their assertion that both of them entered inside the house by breaking open the door because there is nothing on record to show that there was mark of violence on the door of the spot house. The appellant is the son-in-law of the deceased. From the defence suggestion to the prosecution witnesses, it is found that there was some ill-feeling between him and the deceased. The appellant with his brother might have come to the house of the deceased to confront him about the matter. There is also evidence to show that the appellant along with his wife (P.W.3) was staying in the same village. We can not lose sight of the fact that the parties are tribal and they act more on passion than reason. The appellant being guided by some passion might have come to the house of the deceased in odd hours of the night and his brother might have accompanied him. Therefore, we shall accept the evidence of P.Ws.6 and 7 to the extent that in the night of occurrence the appellant and his brother came to the house of the deceased and we do not accept the assertion of the witnesses (P.Ws.6 and 7) that they so came by breaking open the door. From the evidence of P.Ws.6 and 7, it is further clear that the present appellant gave only one slap to the deceased and his brother gave a stab blow to the deceased by the knife he was holding. Learned trial court has convicted the present appellant by aid of Section 34, I.P.C. Learned Additional Government Advocate submits that as both the appellant and his brother came together and the appellant had knowledge about the fact that his brother was armed with a knife and as they left the spot together, on the basis of their conduct learned trial court has rightly convicted the present appellant by aid of Section 34, I.P.C. 9. In our discussion supra we have discussed the law relating to Section 34, I.P.C. which speaks of conjoint complicity. In the present case, there is no evidence to show that the appellant and his brother left the spot together. P.W.6 is speaking about two spots. He has testified that the appellant and his brother assaulted the deceased on the verandah of the house and then they pushed the deceased inside the house. We are not able to accept the evidence of P.W.6 on this aspect in as much as the Investigating Officer vide Ext.9 has seized the bloodstained earth from one spot and the Investigating Officer had designedly not mentioned in the seizure list (Ext.9) as to whether he has seized the bloodstained earth from the verandah or from the room where the dead body of the deceased was lying. In view of such fact, it might have so happened that the occurrence might have taken place either on the verandah and thereafter the deceased might have gone inside the room or the occurrence might have happened inside the room and not on the verandah. We therefore, are not able to accept the prosecution case to the extent that after the assault by c-convict Soma Munda with the knife the appellant and said Soma Munda pushed the deceased inside the house. Though the appellant and his brother Soma Munda came together to the spot house, it is clear from 3 the evidence of P.Ws. 6 and 7 that the present appellant only gave a stab blow and his brother Soma Munda assaulted the deceased with the knife which is the fatal blow and cause of death of the deceased. Had the appellant nurtured any intention to kill the deceased, he would have come to the spit armed, but he had come to the spot unarmed. The spot house is inhabited by the deceased and his sons. In view of such fact, the appellant’s brother might have brought the knife to defend in the event they are caught while entering into the spot house, or in the event, they are attacked by the inmates of the house. From the facts proved it can not be held that the appellant had any knowledge about the fact that his brother Soma Munda was armed with a knife while accompanying him (appellant).Taking into consideration the entire evidence on record, we are unable to hold the conduct of the appellant to be incriminatory, to fasten the liability on him by aid of Section 34, I.P.C. The appellant is guilty for his individual act and he can not be be held guilty for the offence of murder. As discussed supra, the appellant having given a slap to the deceased he is liable under Section 323, I.P.C. 10. In view of our discussion supra, we modify the conviction of the appellant to one under Section 323, I.P.C. and sentence him to suffer R.I. for one year there under. 11. With the aforesaid modification of the conviction and sentence, the appeal is allowed in part. It is submitted by the learned counsel for the appellant that though the appellant is now on bail, he has already suffered the sentence awarded to him. If that be so, the appellant Parsu Munda be set at liberty forthwith, if his detention is not required in connection with any other case. Appeal allowed in part. 4