B.K. Patra, J.
1. The appellant Badhu Majhi was tried along with three others on charges under Sections 302/34, 201/34 and 379/34, Indian Penal Code by the Sessions Judge, Baripada. The three others were acquitted of all the ttfTaifges and the appellant alone was found guilty under Sections 302/34 and 201/34, Indian Penal Code and was sentenced to undergo rigorous imprisonment for life for his conviction under the former charge and to suffer rigorous imprisonment for three years and to pay a fine of Rs. 100/-,and in default of payment of the fine to undergo rigorous imprinsoment for one month more for his conviction under the latter charge. The sentences were directed to run concurrently.
2. The prosecution case in brief is this: The deceased Barsa Majhi had taken lease of a tank in village Tulasibani for purpose of fishery. His partners in the said business were all the villagers excepting Hari Majhi and his son Ratna (Accused No. 1), Pirthi Majhi (Accused No. 3) and Buka Majhi (Accused No. 4). These four persons therefore bore a grudge against Barsa Majhi and there were frequent quarrels between them on that account. Barsa also used to sell fishery to the residents of neighbouring villages and was in the habit of moving from village to village to collect his dues. On 4-10-1968, which was a Friday, Barsa Majhi left his village at about 9 a.m. for the neighbouring village Banki to collect his dues. On the next morning, his dead body was found lying in a Nala in Mouza Bija-tala. A. U. D. F. I. R. was lodged at the police Station by the Grama Rakshi P. W. 1 and when the Police came to the spot for investigation, P. W. 2 the father of the deceased lodged information before the Offi-cer-in-charge on the basis of what he had learnt about the incident from the present appellant Badhu Majhi. On the statement so made by P. W. 2, an F. I. R. under Sections 302/34 and 201/34, IPC was drawn up against Ratana Majhi (Accused No. 1), Badhu Majhi, (accd. No. 2), Pirthi Majhi (accd. No. 3), Boka Majhi (accd. No. 4), Bhuta Majhi (P. W. 7) and Harihar Majhi (father of accd. No. 1 Ratana Majhi), and the dead body of Barsa Majhi was sent for post-mortem examination. Ten incised Wounds and a blunt depressed injury were found in the region of the head, face, eai and neck of the deceased and on dissection, the doctor found an irregular linear fracture of the skull above lie right ear. The cause of death, according to the doctor, was shock and haemorrhage resulting from the multiple injuries found on the dead body. During the course of investigation, the appellant Badhu Majhi made a confession before a Magistrate, First Class (Ext. 6) and a wrist watch said to be the property of the deceased was seized from his possession. After completion of investigation the Police submitted a charge-sheet against the four accused persons, and Harihar Majhi, father of Ratana Majhi (A/1). Harihar Majhi, however, died during the pendency of the commitment proceeding. The other four persons were committed to stand their trial in the Court of Session where the following three charges were framed against them.
First - That you, on or about the 4th day of October, 1968 at about 9 p. m. in furtherance of common intention of all, did commit murder by intentionally causing the death of one Barsa Majhi of Tulsibani P.S. Rairangpur, District Mayurbhanj and thereby committed an offence punishable under Section 302/34 of the Indian Penal Code.
Secondly- That you on or about the game night, time and place knowing that certain offence, to wit, murder punishable with death had been committed by you all did cause the evidence of murder to disappear, to wit, had secreted the dead body of Barsa Majhi in the water of Bijatala channel, with the intention of screening yourselves from legal punishment in furtherance of common intention of all and thereby committed an offence punishable under Section 201/34 of the Indian Penal Code.
Thirdly- That you on or about the game night, time and place in furtherance of common intention of all committed the theft of one wrist watch by taking it out of the possession of the deceased Barsa Majhi and thereby committed an offence punishable under Section 379/34 of the Indian Penal Code.
3. All the accused persons pleaded not guilty.
4. The prosecution case as told by the alleged eye-witness P. W. 7 is this: On the date of occurrence till evening he (Bhuta Majhi P. W. 7), Badhu Majhi (appellant) and the deceased Barsa Majhi were drinking liquor in the Bijatala Bhati. The only other person present in the Bhati was Lamohan Mahji (P. W. 4). While taking liquor at the Bhati, Barsa went out to answer a call of nature and during such temporary absence, the appellant Badhu Majhi confidentially told P. W. 7 that accused No. 1 Ratna, Pirthi (A/3), Buka (A/4), Hari and he himself (appellant) had hatched up a plan to kill Barsa that very night. After answering the call of nature, Barsa joined them and towards evening expressed his desire to go back home on a cycle. P. W. 7, it seems, persuaded him to stay away with him foi the night but Barsa refused and started to return to his village. P. W. 7 states that thereafter he, the appellant and the deceased walked towards the channel side. While they were at a distance of about one kilometei from the Bhati, accused Nos. 1, 3 and 4 appeared on the road all of a sudden. Buka caught hold of Barsa and threw him down on the ground. Pirthi sat on Barsa who was lying on the ground and held him tight and accused Ratna (A/1) inflicted cut blows by means of an Axe on the throat and the head of the deceased. P. W, 7 says that on seeing this, he ran away from the spot The above story was told by P. W. 7 for the first time in the trial Court. He did not say so either before the Police or in the Court of the committing Magistrate.The learned Sessions Judge, therefore, rightly disbelieved his testimony.
5. P. Ws. 2, 3, 5 and 6 who are some of the co-villagers deposed about an extra-judicial confession said to have been made before them by the appellant while according to P. Ws. 2, 3 and 6, in the statement made by the appellant he absolved himself completely from any blame and said that accused Nos. 1, 2 and 4 had murdered Barsa by means of an axe, P. W. 5 stated that the appellant also implicated himself in the commission of the murder. Discussing this evidence, the learned Sessions Judge did not believe the testimony of P. W. 5 that in the extra-judicial confession made by the appellant he had also implicated himself in the commission of the murder. He, therefore, rightly held that as the statement made by the appellant before P. Ws. 2, 3, 5 and 6 is purely exculpatory, it is no confession at all and being not a confession it has no evidentiary value so far as the other accused persons are concerned. The evidence of P. Ws. 1, 2, 3, 6 and 7 having thus been disposed of, the learned judge held that there is no other evidence to connect the accused Nos. 1, 3 and 4 with the commission of the crime and therefore ordered their acquittal.
6. So far as the appellant is concerned, the learned Sessions Judge believed that the confession (Ext. 6) made by him before the Magistrate P. W. 11 was voluntary. As the confession received corroboration from the fact that the wrist watch M. O. I belonging to the deceased Barsa was recovered from the possession of the appellant, he thought that the confession can be believed although it was retracted subsequently in the trial Court. He, therefore, convicted the appellant under Sections 302/34 and 201/34, I. P. C, and sentenced him an already indicated.
7. The confessional statement Ext. 6 was recorded by the Magistrate in Oriya. Translated into English, it would read thus:
On the Sunday before last Sunday, I had been to Tulasibani. There Boka Majhi (A/4) saw me and paid me Rs. 5/- saying that on the coming Friday I should get Barsa Majhi fully drunk so that they would go that night and kill him. When Boka told me so, Ratana Majhi (A/1), Harihar Majhi, father of A/1 and Pirthi Majhi (A/3) were also present. On Friday last I went to Bijatala. Barsa Majhi had also gone there. I saw him at about 1 or 2 p. m. and I invited him for a drink. We got three bottles of arrack from the Bhati. I was taking in small quantities and I made Barsa drink the rest. By the time we finished drinking it was about 8 in the night. Thereafter Barsa wanted to go back home and both of us were returning. Near the Bijatala Nala, Boka, Ratana and Pirthi were present. Boka came on to th road, caught hold of the hand of Barsa. Ratana hit Barsa with the Budia on his head, and neck and Barsa fell down. Boka gave kicks to Barsa and Pirthi sat on his chest. After some time Barsa died. Boka and Pirthi took the dead body to the Nala. Boka removed the wrist watch from Barsa's hand and gave it to me, threatening at the same time that if I would divulge the same to anybody, I would be killed. I came to Bijatala. Next morning when I was going towards the Bhati, the Chowkidar and the member saw me and reminded me that I was with Barsa on the previous day and asked me who killed him. I hold them that I did not kill him but that he was killed by Boka, Pirthi and Ratana and Harihar Majhi. They asked me wherefrom I got the wrist watch. I told them that the other accused had removed it from the band of Barsa and had given it to me after cautioning me that I should not divulge the incident to any body. Thereafter the Chowkidar and the member kept me in detention.
8. It is, therefore, clear from Ext. 6 that the appellant had nowhere admitted that he had taken part in the actual murder of Barsa or that he had shared the common intention of the other accused persons to kill him. All that he was asked to do was to make Barsa drunk and he carried out that assignment. This in our opinion does not amount to taking part in the commission of the Crime. True it is that the wrist watch belonging to the deceased was found in his possession. Although in Ext. 6 he stated that the other accused persons removed it from the hand of the deceased and gave it to him (appellant), he stated in Court during his examination under Section 342, Criminal P. C. that prior to this occurrence Barsa had given the wrist watch to him. This statement made by him in Court may or may not be true. Even assuming for a moment that what is stated in Ext. 6 is true, that is not sufficient to establish the charge against him. It was a reward given to one who happened to witness the occurrence in consideration of his promise not to divulge the matter to others. But this discussion regarding the evidentiary value of Ext. 6 in so far as it concerns the appellant need not detain us further because having regard to the charges framed against the appellant and in view of the fact that the other three accused persons against whom the very same charges were levelled had already been acquitted; we hold that the conviction of the appellant cannot stand. We have already extracted the three charges framed against the four accused person including the appellant. The appellant was charged under Section 302, IPC read with Section 34 of the said Code for having shared the common intention of the three other accused persons and having in furtherance of such common intention committed the murder of Barsa Majhi. He was also charged for having shared the common intention of the other three accused persons in causing the evidence of the murder to disappear punishable under Section 201/34, IPC and for having committed the theft of the wrist watch of Barsa Majhi punishable under Section 379/34, IPC When the other three accused persons were acquitted, the element of sharing the common intention with them disappears. The appellant was not charged for having committed the murder himself nor was any alternative charge framed against him for having shared a common intention with the three acquitted persons and some other unnamed persons. It is well settled that common intention within the meaning of Section 34, IPC implies a pre-arranged plan and that the criminal act was done in pursuant the pre-arranged plan. The plan must precede the act constituting the offence. If that be so, before a Court can convict a person under Section 302 read with Section 34, IPC it should come to a definite conclusion that the said person had a prior concert with one or more named or unnamed persons for committing the said offence. Where, therefore, three of the four accused persons charged for an offence under Section 302/34, IPC are acquitted, the conviction of the fourth accused on a charge under that section would be clearly wrong and cannot be sustained. The same consideration would also apply to the charge under Section 201/34, IPC (see : 1956CriLJ147 ), Prabhu Babaji Navle v. State of Bombay and : 1SCR678 , (Krishna Govind Patil v. State of Maharashtra).
9. We would accordingly allow this appeal, set aside the conviction of the appellant and the sentences imposed on him and direct that he be set at liberty at once.
K.B. Panda, J.
10. I agree.