S.K. Ray, J.
1. This is a reference under Section 366 Criminal Proceding Code for the confirmation of sentences of death passed on Dharamidkar Mohanty and Sana Mohamly who have respectively been convicted under Sections 302 and 302/34, Indian Penal Code far having committed the murder of their first cousin Sugriba Mohanty. The two accused persons have also preferred a Jail Criminal Appeal No. 109 of 1975 and Criminal Appeal No. 114 of 1975 from the judgment of their convictions and sentences. The death reference has been heard along with the appeal filed by the accused per-sons.
2. On a Tuesday in the month of Baisakh 1974 which is equivalent to 16-4-1974 at about 9 a.m. the deceased and hisHalia (P. W. 4) loaded a cart with manure and proceeded towards Madhuban Chak for the purpose of manuring the lands of the former. The cart was being driven by the Halia sitting in its front and the deceased was following it. As soon as they crossed the gate of the house of the accused persons, the deceased was assaulted by both the accused persons one after another and ultimately accused Dharani dealt the fatal blow with a Bhala (M. O. 1). At the time of this killing accused Sana was armed with a Tangia and accused Dharani was armed with a Bhala (M. O. 1). No sooner was the deceased before the gate of their house than accused Sana raised a Tangia at the deceased and gave a blow which cut the deceased on his right arm. The deceased thereafter caught hold of the wooden handle of the Tangia and a struggle ensued for pos-session of the Tangia between the deceased and accused Sana. It was while they were just struggling, accused Dharani came with a Bhala and pierced it into the abdomen of the deceased causing the intestines to spill out. The deceased then clutching his abdomen injury ran to a nearby field and then fell down and subsequently died. Thereafter both the accused persons fled away carrying with them the Tangia and the Bhala (M. O. I).
3. P. W. 1, the brother-in-law of the deceased, went towards the spot at the request of his sister to find out the reason for the Golmal about which she overheard some ladies talking. While going towards the place of occurrence, he met P. W. 4 coming towards the village and the latter informed him that the two accused persons had assaulted the deceased who was lying injured on a field. On reaching the spot he found the deceased lying on a field of Bansidhar Pani at a distance of about 100 cubits from the gate of the accused persons. He also found that other villagers including P. W. 2 had already gathered there. He immediately directed the manure cart to be unloaded and made ready for carrying the injured to the hospital. He also sent someone to fetch water for being given to the deceased. He gave some water to the deceased who made a dying declaration in presence of P. Ws. 2, 3 and 4 in the following words:--
'Dharani Mohanty. Sana Mohanty Bhala O Tangiare Dui Bhai Misi Mari Dele. Mun Khata Dhari Bilaku Asuthili. Hathat Dharani Mohanty Bhala Maridela. Sana Mohanty Tangiare Hani Dela. Mun Au Banchiparibi Nahin. Mora Pila Chhua Tote Lagile.'
Subsequently the wife of the deceased came there and seeing the condition of her husband started fainting repeatedly. On the suggestion of one Ganeswar Mohanty that further delay should not be made in carrying the deceased to the hospital, the empty manure cart was brought up and the deceased was placed inside the Lodara. But when the cart came to the road, P. W. 1 and others discovered that the deceased had died. The cart, therefore, was stopped at that place with the dead body of the deceased inside it and P. W. 1 after making arrangement for the nursing of his sister, proceeded to Dhen-kanal Sadar police station 16 Kms away on a cycle and lodged the F. I. R. at 2.20 p. m. (Ext. 1), The I. O. (P W. 12) left the police station at 2.40 p. m. and reached the spot at 3.30 p. m. He held inquest over the dead body at 4.45 p. m. and drew up inquest report (Ext. 8/2). He seized bloodstained earth from the field of Bansidhar Pani where the deceased ultimately fell down after being assaulted. He also seized the Bhala (M. O. I) from the south-western corner of the room of the accused persons under seizure list (Ext. 5/2). He sent the dead body for post-mortem examination which was held by P. W. 13 at Dhenkanal Hospital at 9 a. m. on 17-4-1974. He did not find the accused persons in the village and attempted to trace them but without success. He examined some witnesses including P. W. 4. On 17-4-1974 he went to village Biswanathpur with his A. S. I. in search of the accused persons as their brother was living there but did not find them. He returned back to the police station at 7 a. m. On the same day he again went to the village of occurrence and other neighbouring villages in search of the accused persons but found no trace of them and learnt that they had Hone to Dhenkanal to surrender. He returned to the police station at 3 p. m. By that time the accused persons had been arrested by P. W. 11, second officer in charge of the police station, and a bloodstained cloth had been seized from the person of accused Dharani under seizure list (Ext. 9). He got the sketch map of the place of occurrence prepared by the Revenue Amin.
On 27-4-1974 he received the postmortem examination report and found that the doctor had not mentioned about the injury on the right upper arm of the deceased which he had found at the time of inquest. Therefore, he made enquiries regarding it to find out how and under what circumstances he had not mentioned about the injury on the upper right arm of the deceased, and whether the injury on the abdomen could be caused by the Bhala (M. O. I) and whether the injuries on the deceased were sufficient to cause death in the ordinary course of nature. He received the reply of the Medical Officer (Ext. 14/1). He seized some documents from the local recordroom and kept the same in the zima of the Record Keeper. He took steps for sending M. O. I. bloodstained earth, sample earth. Dhoti and Gamuchha of the deceased and Dhoti of accused Dharani for chemical analysis and Serologist's report-After completion of investigation, he submitted charge-sheet against both the appellants under Section 302/34. I. P. C on 31-7-1974.
4. The defence plea is right of private defence of person, based on the following defence version of the occurrence. On the date of occurrence the deceased and P. W. 4 were passing in front of their house with the manure cart and P. W. 5 was driving it sitting on Its front while the deceased was walking behind the car dangling a Tangia from his shoulder. While passing in front of their house, the deceased saw both the accused persons standing near their gate and raised the Tangia and rushed at them and attempted to hack appellant Sana with the Tan-gia. Thereupon accused Sana caught hold of the weapon, that is the handle of the Tangia and struggled with the deceased. While the struggle was going on accused Dharani, in order to save his brother, aimed a Bhala blow at the thigh of the deceased, but unfortunately, as the deceased changed his position, it landed on his abdomen instead of on the original target and killed him.
5. In view of the aforesaid defence plea, the homicidal nature of death of the deceased is admitted. The medical evidence also corroborates the same fact. The doctor found a punctured wound 1' X 1/4' and the probe passing freely into the abdominal cavity directed downwards and medically with clean cut margins. There was a prolapsed intestinal loop present. The site of the injury was 5' to the umbilicus level on the interior abdominal wall. Abdominal wall was pierced and peritoneum also injured at the corresponding level. There was one punctured wound 3/4' X 1/4' on the anterior aspect and another punctured wound 1/2' X 1/4' on the posterior aspect of the descending colon 4' below the spleenic flexure with huge amount of blood in the abdominal cavity. These internal injuries correspond to the external injuries. He was of opinion that the Bhala (M. O. I) was a possible weapon which could cause the injuries found by him on the dead body and that the injuries were sufficient in the ordinary course of nature to cause death. He further states that after a man is assaulted with the Bhala on his abdomen, he may bp able to run for some distance, but will fall down in the end due to physical unfitness resulting from loss of blood. Even then he will not lose his power of speech, because physical unfitness would precede and would not simultaneously induce mentalunfitness or mental incapacity to think and to talk. This testimony indicates that the deceased after falling down on Banshi Pani's land would not normally lose consciousness and his power of speech and thought,
6. The prosecution, in order to bring home the charge to the appellants, has relied on (a) motive, (b) testimony of P. W. 4, the only eye-witness, (c) dying declaration first made by the deceased before F. Ws. 2, 3 and 4 at the earliest opportunity and again, subsequently, before P. W. 1; (d) evidence of conduct of the accused in absconding soon after the occurrence; and (e) the element of false defence.
7. The deceased and the accused persons are first cousins, Mayadhar, father of the deceased and Adikanda. father of the accused persons, being brothers. As stated by P. Ws. 1 and 4 there was litigation between the accused and the deceased prior to the occurrence and that they were not pulling on well since long. The deceased had commenced a criminal proceeding against the accused, their brother and father which was pending by the date of occurrence. The subsisting ill-feeling and litigation is also admitted by the accused in their statements before the Sessions Court. The records of the criminal case have been filed which show that the case was on the allegation that the accused and their relations had committed offences under Sections 342 and 324/34, Indian Penal Code and on 26-3-1974 the Magistrate had issued non-bailable warrants against the accused persons and their brother and father for non-appearance in court in obedience to the summonses issued to them. This was about 10 days before the occurrence. There is of course, no evidence that the accused persons were cognizant of this order of the Magistrate, but we may presume that they were aware of it. because, as normally happens, the litigants do not appear in obedience to first summons with a view to put the other side to further expenses by compelling him to take steps for fresh service but all the same keep watch over proceedings in court to avoid the possibility of the case being decided ex parte against them. It is, therefore, quite likely that the accused coming to know of this order became infuriated at the deceased who was ostensibly instrumental in getting the non-bailable warrants issued against them. The prosecution has therefore, established a motive in this case,
8. The only eye-witness to the occurrence is P. W. 4. the Halia of the deceased who has related the following story. On the date of occurrence (16-4-19741 which was a Tuesday he and the do-ceased were engaged in carrying manureto the Tatter's field at Madhuban Chak. In the morning of that day P. W. 1 had come to the deceased's house with a bullock which He had borrowed from the latter. P. W. 1 and the deceased talked for some time and the former went inside the house while he and the deceased proceeded with the manure cart towards the field. He sat in front of the cart and was driving it while the deceased was following it a few feet behind, some times catching hold of the rear Danda of the cart and some times not. The read ran in front of the house of the accused persons. While hearing the said house, he found both the accused persons, standing near their front gate bare handed. Close to them were a number of bushes. After he had crossed the gate to a distance of about 10 to 11 cubits, he heard the deceased shouting 'Han Hani Dela'' and looked back and found that accused Sana had raised a Tangia at the deceased and the latter was holding its wooden handle and they were struggling. In fact, he had seen the Tangia being wielded by accused Sanatan. Immediately thereafter accused Dharani stabbed the abdomen of the deceased with the Bhala (M. O. I) pulled it out and went inside the house carrying his weapon. P. W. 4 has identified the Bhala (M. O. 7) as the weapon used by Dharani. On being stabbed, the deceased released his hold on the wooden handle of the Tangia and clasped Ms abdomen Injury with both hands. Accused Sana then became free and also followed Dharani into the house also carrying the Tangia with him. The deceased, in the meantime, began running towards the uncultivated paddy field of Banshi Pant crying 'Bopa Marigali. Maa Marigali' and 'ultimately collapsed on that field. Seeing this, P.W. 4 shouted for help saying 'Bahi Kie Kuade Achha Dhain Asa. Sana Tangiare Hani Dela. Dharani Bhala Mari Dela'. Hearing his shouts. P. W. 2 came there and was subsequently joined by P. W. 3. They started lifting the deceased, but ultimately laid him down or the field with face upwards. On being questioned by P. W. 2 as to what happened, the deceased made his first dying declaration saying 'Sana Tangiare Hani Dela, Dharani Bhala Man Dela'. On direction from P. W. 3. P. W. 4 proceeded to the house of the deceased to inform its Inmates about the occurrence. On the way. he met P. W. 1 on the road and informed him about it. Both of them turned back to the place of occurrence.
P. W. 1, the brother-in-law of the deceased, directed P. W. 3 to fetch some water for giving to the deceased, and also directed P. Ws. 2 and 4 to unload the manure cart immediately and make it ready for carrying the deceased to the hospital. The deceased also made the second dying declaration to P. W. 1 in the following words:--
'Dharani Mohanty, Sana Mohanty Bhala O Tangiare Dui Bhai Misi Mari Dele. Mun Khata Dhari Bilaku Asuthili Hathat Dharani Mohanty Bhala Maridela. Sana Mohanty Tangiare Ham Dela. Mun Au Banchiparibi Nahin. Mora Pila Chhua Tote Lagile.'
While the deceased was being carried to the cart from the field to the Rasin he was found to be dead. Accordingly the cart with the dead body was stopped and kept there and he along with another villager kept watch over the dead body while P. W. 1 proceeded to the police station for lodging F. I.R. P. W. 4 was admittedly the farm servant, of the deceased and was carrying manure to the letter's field. That was the second trip of manure he was carrving and on the first occastor he had also passed the house of the ar-cused persons accompanied by the dececeas-ed. Ho is, therefore, a competent witness. He has categorically stated that he has seen the Tangia being wielded by accused Sanatan and while the deceased caught hold of the handle thereby preventing accused Sanatan from hitting hirr-with the Tangia he was immediately pierced by accused Dharani with the Bhala (M. O. 1). Though he has not seen accused Sanatan having actuall hit any part of the body of the deceased with the Tangia. nevertheless, it appears from the inquest report that there was an incised wound on right upper arm of the deceas- ed which obviously is ascribable to the first blow dealt by accused Sanatan. This gets ample-corroboration from the shouting of the deceased 'Han Hani Dela'. Fortunately the first stroke of accused Sana-tan inflicted a small cat injury on the right upper arm which enabled the deceased to grapple with his assailant catching hold of the wooden handle of the Tangia thereby preventing further assaults. The shout 'Han Hani Dela' indicates that he had been hit with the Tangia before he began grappling with his assailant Immediately thereafter, within a very short time of this grappling, which is des-cribed by P. W. 4 as twinkling of eye, accused Dharani stabbed the abdomen of the deceased with a Bhala. pulled it out and then went abruptly inside his house carrying the weapon with Mm Being so stabbed. the deceased released his hold of the wooden handle of the Tangia and clasped both his hands on the site of his abdomen wound. Accused Sanaten thereafter followed his brother inside the house carrying away the Tangia. P. W. 2 corroborates P. W. 4 that the latter shouted for help naming both the accused to have killed the deceased. P. W. 3 also deposes to have heard p. W. 4 shouting that the accused persons were killing the deceased. P. W. 1 also corroborates P.W. 4 that the latter on meeting him on his way to the place of occurrence implicated both the accused persons as the assailants of the deceased. He seems to have also named the weapon of offence while shouting for help or relating the incident to others, as will appear from the testimony of P. Ws. 1. 2 and 3. His evidence has not been shaken in the least despite gruelling cross-examination. His testimony appears to be natural and true being corroborated by P. Ws. 1. 2 and 3 and other circumstances in the case.
9. It is appropriate to consider the defence plea at this stage. This plea of right of private defence has to be established by the accused, the onus being on them. Though they are not required to prove this defence plea to be true bevond all reasonable doubt, yet they must show that it is reasonably probable. The defence case is that the deceased while following the manure cart was dangling a Tangia from his shoulder. On seeing the accused persons at the gate of their house he charged them with his Tangia and while trying to hack accused Sanatan. the latter caught hold of the handle of that Tangia and there was a struggle between them. Accused Dharani apprehending death to his brother fetched a Barchha and wanted to strike the leg of the deceased. But due to the constant movement of the deceased in course of the struggle with accused Sanatan the stab intended for the leg accidentally struck the abdomen. To prove that the deceased was carrying a Tangia with him they have examined two defence witnesses. D. W. 1 who is a co-villager of the deceased and the accused states in chief that on the date of occurrence he found the deceased going behind his manure cart dangling a Tangia from his shoulder. He. however, admits that he did not inform this fact to anybody or even to the police till the date of his examination in court. If so. how was he cited as a defence witness by the accused On the contrary, he admits that nearly six months back the father of the accused persons had requested him to give evidence on the side of the accused. He has admitted that Mayadhar. father of the deceased, and his two brothers had filed a criminal case against him. He cannot say to whom the Tangia carried by the deceased belonged and admits that he cannot even identify that Tangia if it is produced before the Court For the aforesaid reasons, it is impossible to place any reliance on this witness who appears to be a procured one. D. W. 2 is another co-villager of the accused and the deceased. He also states that the deceased was walking 2 to 4 cubits behind the manure cart with a Tangia dangling from his left shoulder with the wooden handle resting on his chest. Subsequently at about 2 to 3 p. m. that day when he was in the workshop of a black-smith of village Bhatakateni he heard about the deceased having been killed in a golmal from Chakradhar Rai. Natia Parida. Bha-rat Swain and Millu who had gathered there. They, however, did not disclose how the deceased died or who killed him. D. W. 2 told those persons that he had seen the deceased a short time before coming with his manure cart with a Tangia dangling from his left shoulder. Those persons from whom he heard about the killing of the deceased and to whom he disclosed the fact that the deceased was dangling a Tangia from his shoulder immediately prior to the occurrence have not been examined. Without knowing how and in what manner the deceased was killed and without evincing any interest to know more about it. it is most unusual and unlikely for him to disclose the fact that the deceased was going with a Tangia dangling from his shoulder sometime in the morning of that day. He further admits that he cannot identify the Tangia carried by the deceased if produced before him. For the aforesaid reasons this witness also does not inspire confidence at all. It is, therefore, impossible to accept the defence suggestion that the deceased was carrying a Tangia dangling from his shoulder while going behind his manure cart just prior to the occurrence. It follows from the aforesaid finding that the defence story that it is the deceased who chased accused Sanatan with his Tangia and that the latter in order to avoid infliction of blow with the Tangia caught hold of the wooden handle and was struggling with the deceased at the time is not true. Therefore, the right of private defence of person does not accrue to accused Dharani, according to the prosecution evidence which is acceptable. It is accused Sanatan who was the aggressive party and had. in fact, succeeded in inflicting one incised wound on the upper right arm of the deceased which was found by the I. O. at the time of inquest. This clicks with P. W. 4's evidence that he heard the deceased shouting 'Han Hani Dela'.
10. It is in evidence that the deceased made dying declaration twice, once before P. Ws. 2 and 3 and subsequently again before P. W. 1. P. W. 2 questioned the deceased who had his senses and power of speech unimpaired as to what happened to him. The deceased said that accused Sana and Dharani assaulted him with Bhala and Tangia. and that he would not survive. He is entirely corroborated by P. W. 3 in this respect. His second dying declaration was made to P. W. 1, his own brother-in-law. The dying declaration made by the deceased to P. W. 1 is in the following words:--
'Dharani Mohanty, Sana Mohanty Bhala O Tangiare Dui Bhai Misi MariDele. Mun Khata Dhari Bilaku Asuthili. Hathat Dharani Mohanty Bhala Maridela. Sana Mohanty Tangire Hani Dela. Mun Au Banchiparibi Nahin. Mora Pila Chhua Tote Lagile.'
This dying declaration is a little more in detail than the laconic declaration made to P. Ws. 2 and 3. It is natural because P. W. 1 is his own brother-in-law. In essence, these dying declarations implicate accused Sana having assaulted him with Tangia and accused Dharani with a Bhala. The deceased, as already stated, is the first cousin of the accused persons and this occurrence took place in broad day light. According to the witnesses, as corroborated by medical evidence the deceased was conscious and his power of speech and thought had not been impaired despite stabbing of his abdomen and protruding of his intestines. He had the capacity to remember the facts about which he made a declaration to P. Ws. 1. 2 and 3. These dying declarations were made at the earliest opportunity and were never the result of any tutoring by interested parties. It is also corroborted by the direct testimony of P. W. 4. In our opinion, the dying declarations, judged in the light of the evidence of the eye-witness and other surrounding circumstances on record, are truthful versions as to the circumstances, as to the manner of death of the deceased and as to his assailants who caused that death.
11. In view of the failure of the defence plea of right of private defence of person and in view of the acceptance of the story as unfolded by the prosecution to be true, it is now to be seen what offences have been committed by the appellants.
Accused Sanatan has been convicted under Section 302/34. Indian Penal Code. It is the settled position of law that to invoke Section 34, Indian Penal Code the prosecution must establish common intention and prove that the criminal act was done in concert pursuant to a pre-arranged plan. In inferring common intention from the evidence on record one must keep in the forefront of his mind the distinction between the common intention and the same or similar intention, though the dividing line between them is often very thin. If this distinction is overlooked, miscarriage of justice is likely to occur. It is equally well settled that inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case.
The evidence of P. W. 4. the only eye-witness in the case, is not such as to lead to the necessary inference that there was a prior meeting of the minds of the two accused persons. When P. W. 4 first saw the accused persons they were standing in front of their gate which is natural. They were then completely unarmed and bare handed. The mere fact that suddenly both the accused persons procured their weapons from somewhere would not necessarily lead to an irresistible inference that both the accused persons had entered into a pre-arranged plan to murder the deceased. Their subsequent conduct also does not improve the position of the prosecution. The evidence is not such as to constitute a foundation for the conclusion that a common intention has been made out and not a same or similar intention. Therefore. Section 34, Indian Penal Code, in our opinion, cannot be invoked against accused Sanatan. His conviction under Section 302/34. Indian Penal Code is. therefore, set aside. He is. however, liable for his own act of causing the incised wound on the right forearm of the deceased with the Tangia which is an instrument for cutting and stabbing and if used as a weapon of offence, is likely to cause death. He is. accordingly, convicted under Section 326. Indian Penal Code and sentenced to five years' rigorous imprisonment.
Coming to accused Dharani. it will be seen that there is neither any direct evidence nor any circumstance of a conclusive nature proved in the case which can be said to rebut his story that he assaulted deceased to save his brother thinking and believing that the deceased will ultimately overpower his brother and kill him. The evidence of P. W. 4 is that raising of Tangia by Sanatan to assault the deceased followed by his struggle with the latter and the stabbing by accused Dharani took place in quick succession, leaving no appreciable time for Dharani to rush into the house and procure the Bhala. It raises an inference that Dharani had kept himself armed and ready to assault the deceased. But there is no evidence as to the distance between the gate and the house and as to where the Bhala was in the house and whether it was or was not possible for Dharani to procure that weapon quickly. The evidence is also not clear as to whether there was any struggle preceding the shouts of the deceased- If there was any such preceding struggle, it would give accused Dharani sufficient time to procure his weapon before attention of P. W. 4 was drawn by the shouts of the deceased. These possibilities being there, the defence story of Dharani has necessarily to be accepted and he is to be given the benefit of doubt. In fact, as the evidence stands accused Sana being the aggressor and the deceased merely struggling with him to save his own life, it gave, in actuality no right of private defence of person to Dharani against the deceased, though he might have erroneously thought that he had such a right on account of the way in which, the struggle was probably proceeding making him think that the deceased might ultimately get the upper hand of accused Sana. It would not still give him that right. Right of private defence of person does not arise on account of a mistaken notion as to its existence. Thus, being deprived of his claim of right of private defence of person. accused Dharani would be guilty of an offence of culpable homicide. It is now to be seen whether such an offence amounts to murder or not. Accused Dharani has stated in his 342 Cr. P. C. statement that he aimed a blow at the leg of the deceased to incapacitate him, but it struck him on the left side of his abdomen. Though he wants to change the weapon of murder from Bhala. as proved by the prosecution, to Barchha, nevertheless, he has disclosed his intention at the time to be only to incapacitate the deceased and not to cause his death. He gave only one blow and shortly after the occurrence he surrendered along with his co-accused at the police station, of course after absconding for sometime. There is also no evidence or circumstance proved in the case which would rebut this statement of accused Dharani. It must necessarily be accepted, as he says, that he had no intention to cause the death of the deceased, or to cause such bodily injury as he knew to be likely to cause death or was sufficient in ordinary course of nature to cause death but only to incapacitate him by hitting at his leg. Further, the original act of hitting the leg of the deceased intended was not so imminently dangerous as must, in all probability, cause death or such bodily injuries as is likely to cause death. In the circumstances, it would be an offence of culpable homicide not amounting to murder. Though he had no intention to kill the deceased, he must, however, be imputed with the knowledge that the stroke might cause death, but not must, in all probability, cause death, if accidentally it hit the vital part of the deceased, as in fact it did and caused death, but he had no intention to cause death or such bodily injury as is likely to cause death. Therefore, this case would come under Part II of Section 304. Indian Penal Code. We would, therefore, set aside his conviction under Section 302. Indian Penal Code and convict him under Part II of Section 304. Indian Penal Code instead and sentence him to ten years' rigorous imprisonment.
12. In the result, therefore, the death reference is discharged. The criminal appeals are allowed in part to the following extent. Conviction of accused Senatan under Section 302/34, Indian Penal Code is set aside and it is converted into one under Section 326. Indian Penal Code instead and he is sentenced to five years' rigorous imprisonment. Conviction of accused Dharani under Section 302, Indian Penal Code is set aside and it is converted into one under Part II of Section 304, Indian Penal Code instead and he is sentenced to ten years' rigorous imprisonment.
13. Death reference is discharged. Criminal appeals are allowed in part.
14. I agree.