B.K. Behera, J.
1. The appellants challenge the judgment and order of conviction recorded on Jan. 20, 1979, by Mr. J. Tyadi, Sessions Judge, Mayurbhanj-Keonjhar, in Sessions Tria} No. 36-M of 1978, holding them guilty of the charge under Section 302 read with Section 34 of the Penal Code and sentencing each of them thereunder to undergo imprisonment for life after accepting the case of the prosecution that owing to land dispute between the deceased Balaram Sahu (hereinafter to be referred to as the 'deceased') on the one hand and the appellants on the other, the 1;wo appellants, one of 'them, namely, Allad Naik, being armed with bow and arrows and the other, namely, Harihar Naik, being armed with a Tangia (axe) and a spade, challenged the deceased An May 19, 1977 as to why he had -got the disputed land recorded in his name and inspite of the fact that the deceased returned the certified copy of the sale deed to them and offered to return the land to them. and get the record changed by striking off the signature he had put therein, the appellant Allad, at the instancy of the appellant Harihar who instigated the other appellant Allad to kill the deceased, shot an arrow which hit the chest of the deceased and pierced into his lung and the appellants then further assaulted the deceased by the sharp cutting instrument and by the handle of the spade, severed the head of the deceased and carried the severed head in a bundle to the Court at Baripatla, 'where it was seized by the Sub-Inspector attached to the Baripada Police Station, leaving the trunk of the body near about the place of occurrence, The Doctor at Baripada (PW I) before whom the severed head and the trunk of the body were produced on May 20, 1977 and May 21, 1977 respectively, conducted the autopsy after the severed head and the trunk of the dead body were identified by Basudev Sahu (PW 27), the son of the deceased, to be of his deceased father. According to the doctor, death was homicidal in nature and the injuries could be caused by sharp cutting instrument, the handle of a spade and the shooting of an arrow. In the course of investigation on the basis of the first information report lodged by Sudam Chandra Sahu (PW 22) who had accompanied the deceased to the settlement camp and had witnessed the occurrence, the statement of the appellant Allad while in custody, had led to the recovery of the arrow (M.O. V) without the arrow-head from inside a bush and the statement of the other appellant, while in custody, had led to the recovery of a spade (M.O. VI) from the house of Mukta Bewa (PW 7) to whom the appellant Harihar had handed it over after the occurrence, A Tangia carried by the appellants to Baripada was seized by the Sub-Inspector of Police (PW 21) attached to the Baripada Police Station. Witnesses were examined by the Investigating Officer (PW 26) and on the completion of investigation, a charge-sheet was placed and the appellants were prosecuted being charged under Section 302 read with Section 34 of the Penal Code.
2. To bring home the charge to the appellants, the prosecution had examined twenty-seven witnesses of whom PWs. 13, 18 and 22 had been examined as witnesses to the occurrence. Of them, PWs 13 and 18 did not support the case of the prosecution and were put leading questions under Section 154 of the Evidence Act. PW 1 had conducted the autopsy. PW 26 was the Officer-in-charge of the Bangriposi Police Station who had investigated into the case. The arrow-head' (M.O. I) extricated by the Doctor at the time of autopsy from the lung of the deceased, the Tangia (M.O. III) seized from the possession of the appellants at Baripada, the spade (M.O. IV) seized from the house of PW 7 and the Khaki half-pant (M.O. II) seized from the person of the appellant Allad at Baripada contained blood, as recorded in Ext. 20 by the Chemical Examiner. No opinion as to whether it was human blood was, however, given by the Serologist as would appear from Ext. 20/l.
3. The appellants had pleaded not guilty to the charge and according to them, a false case had been foisted They had not examined any witness in their defence.
4. On a consideration of the evidence, the learned Sessions Judge found that the charge had been established against the appellants and accordingly the order of conviction was recorded and the appellants were sentenced as stated above.
5. The learned Counsel for the appellants has taken us through the evidence of PW 22, the sole eye-witness to the occurrence and the other relevant, evidence and has submitted that the evidence of PW 22 was not worthy of credence and the other evidence, besides being untrustworthy, would not lead one to a reasonable conclusion that, the appellants were the authors of the crime. The learned Additional Standing Counsel has supported the order of conviction as well-founded on the evidence on record.
6. It would admit of no doubt from the evidence of PW 1, the Doctor who had conducted the autopsy over the severed head and the trunk portion of the deceased after proper identification of the dead body by PW 27, the son of the deceased, that the trunk and head portions were of the same person. PW 1 had noticed three lacerated wounds on the head portion and an incised wound on the chest, another incised wound on the right shoulder and a penetrating wound on the right side of the chest which had caused internal injuries and according to him the arrow-head (M.O. I) had embedded into the lung tissue which was removed by him and handed over to the police authorities. Ext. 1 was the post-mortem report prepared by him. The injuries, the Doctor had opined, were ante-mortem in nature and were sufficient in the ordinary course of nature to cause death. As his evidence would show, the lacerated wounds could be caused by the handle of a spade, the incised wound and the cutting of the head could be caused by a sharp cutting instrument and the penetrating injury on the chest could be caused by the shooting of an arrow. The death of the deceased was homicidal in nature.
7. The next and the most important question for consideration is as to whether the two appellants, in furtherance of their common intention, had committed the murder of the deceased.
8. PW 22, the sole eye-witness who had supported the case of the prosecution, was the nephew of the deceased in that the deceased was his father's elder brother, PW 22 had accompanied the deceased to the settlement camp at Nuagaon at about 4 p.m. on May 19, 1977 and as his evidence would show, both of them had gone on bicycles. He had testified that the deceased showed the certified copy of a registered sale deed (Ext. 11) to the Amin who, after verification, mentioned this fact in the Yadast Register which was signed by the deceased. It would also appear from his evidence that while the deceased was signing the Yadast Register, the two appellants arrived there and left the place after some time. While they were returning, PW 22 had gone on to say, both the appellants questioned the deceased as to why he had signed before the Amin. The appellant Allad was then armed with bow and arrows and the appellant Harihar was armed with a spade and an axe. Out of fear, the deceased handed over Ext. 11 to the appellant Harihar and requested them not to assault him. He also offered to score off his signature in the settlement papers. The evidence of PW 22 as to what the deceased did at the settlement camp and as to the presence of the two appellants there did find support in the evidence of PW 17 who had also gone to the settlement camp and that of PW 25, the Amin, who had spoken about the deceased signing in the Yadast Register (Ext. 13) vide Ext. 13/2. his signature against the entry (Ext. 13/1) in relation to Sabak Plot No. 56. PW 25 had also testified about the presence of PW 22 then. As his evidence would show, the appellant Allad had also gone to the settlement camp that day. These materials would show that all was not well with the deceased on the one hand and the appellants on the other who had disputed the claim of the deceased in respect of the land for which an entry had been made in favour of the deceased. In his statement before the trial Court, the appellant Allad had admitted that he and his uncle Harihar (the other appellant) had differences with the deceased in connection with the possession of the land although the other appellant had denied that he had any difference with the deceased. As would clearly appear from the evidence of PW 22, both the appellants had challenged the deceased as to why he signed in the settlement papers. The appellants had thus a motive for the commission of the crime.
9. Coming next to the actual occurrence in which the two appellants had attacked and assaulted the deceased, we would quote what PW 22 had deposed:
While we were proceeding on our respective cycles side by side near the house of Arjuna Naik, accused Hari Naik suddenly appeared before us coming from the back side of Arjuna Naik; Accused Hari Naik was holding a Tangia and also a spade. He stopped Balaram Sahu whereafter Balaram got down from the cycle. I also got down from my cycle. Accused Hari Naik questioned Balaram Sahu as to why he gave his signature in the settlement camp. My uncle replied that he will return the lands to him and asked him to go with him to the settlement camp. My uncle thereafter returned and proceeded towards the Bangala Chhak followed by accused Hari Naik, I also followed them. When my uncle was near the house of one Hindi teacher, whose name I do not know, accused Allad Naik suddenly came in front of my uncle and stopped him. My uncle got down from his cycle. At this time accused Hari also reached the place. Both the accused then questioned Balaram Sahu as to why he made his. signature before the Amin and asked him to go...Balaram Sahu out of fear gave away Ext. 11 to Hari Naik and requested the accused persons not to assault him as he will return the land. He also informed the accused to go with him to the Amin where he wilj score his signature from the settlement papers. At this accused Hari asked accused Allad 'Sala Kan Deri Karuchhu, Mar'. Accused Allad who was holding a bow and arrow then shot an arrow at Balaram Sahu from very close. The arrow struck and pierced the right side chest of Balaram Sahu. Balaram Sahu uttering the words 'Babalo Mari Gali' fell down. When I protested to the accused persons, Hari threatened me that he will also kill me. Accused Hari then dealt a spade blow to me which did not strike me but 'he blow fell on the side of the cycle on the ground. So out of fear I left the place and returned home.
The English version of what the appellant Hari had told the other appellant would read:
Sala why are you making delay, kill.
Nothing substantial had been brought out in the long-drawn-out cross-examination of this witness by the defence except some omissions made by him in his statement to the Investigating Officer with regard to inconsequential details. It has been submitted before us that this witness had stated in the first information report as also in his statement to the Investigating Officer that both the appellants shot arrow at the deceased. Notice had also been taken of this by the trial Court in its judgment. We notice from the first information report that while describing about the occurrence, PW 22 did state in the same manner as deposed to in the Court and he had clearly stated that the appellant Allad had shot the arrow. In a latter part in the same report, however, he had stated that he informed his father's elder brother (PW 19) that the two appellants killed the deceased by shooting an arrow. Such a statement, could naturally be made by PW 22 as both the appellants had come and attacked the deceased and one of them had shot the arrow. There was nothing unusual on the part of this witness to have informed PW 19 in the manner he did. This also was the evidence of PW 22 about the information given by him to PW 19 about the occurrence. PW 19 had testified that on being informed by PW 22 that the appellant Allad had shot an arrow at the deceased, he came to the spot with some villagers and found the headless body of the deceased lying by the side of the road.
10. A comment has been made by the learned Counsel for the appellants that Krishna Chandra Singh, whose name found a place in the first information report as a witness to the occurrence, had not been examined. No doubt, the evidence would show that the shop of Krishna Chandra Singh was nearby. But as noticed by the learned Sessions Judge, there was no material to indicate that with an ulterior motive, the prosecution had withheld the examination of this person. We find from the record that his son (PW 18) and another eye-witness (PW 13) had been examined as witnesses to the occurrence. Both of them, however, had given a go-by to what they had stated to the Investigating Officer against the appellants and for this, they were cross-examined by the prosecution. The evidence of PW 22 was not to be thrown out merely because two of the witnesses to the occurrence turned hostile and did not support the case of the prosecution. We are also not prepared to accept the contention raised by the learned Counsel for the appellants that the evidence of PW 22 is to be discarded because he had not made a hulla when the deceased was attacked and assaulted and had not intervened. A comment has been made that if PW 22 had witnessed the occurrence, he would not have remained silent being a close relation of the deceased. The evidence of PW 22 would show that when he protested, the appellant Hari had threatened to kill him. The trial Court had examined this aspect and referring to and relying on some observations made in the case of Gatisa v. State, 1976 Cut LR (Cri) 185 to the effect that in majority of cases, feeling of fear paralyses the other functions of the body and it would not be proper to discard the testimony of an eye-witness on such grounds, held the evidence of PW 22 to be reliable. Different persons react differently and merely because owing to nervousness on seeing a murderous assault, a person does not raise a hulla or does not intervene, his evidence is not to be thrown out. As has been observed in the case of Angad v. State of Maharashtra : 1981CriLJ733 , if the evidence of the eyewitnesses is otherwise trustworthy, it cannot be rejected merely because they failed to intervene to save, the deceased.
11. The information given by PW 22 to PW 19 immediately after the occurrence about the shooting of the arrow at the deceased and the fact that in the first information report lodged without delay, the two appellants had been implicated would corroborate the evidence of PW 22.
12. It would clearly appear from the evidence of PW 2, the then Sub-divisional Judicial Magistrate at Baripada, PW 3, his Stenographer, PW. 4, the Malkhana Clerk working in the Office of the Subdivisional Judicial Magistrate, PW 6, a Peon in the Office of the Subdivisional Officer of the Public Works Department, PW 16, an Advocate's clerk, PW 23, the Prosecuting Inspector of Police and PW 21, the Sub-Inspector of Police attached to the Baripada Police Station, that in the morning hours when the Courts were having morning sittings, the two appellants, obviously with the purpose of surrendering before the Court after commission of the offence of murder, had gone to Baripada with the severed head of the deceased kept in a bundle with a bloodstained axe (M.O. III) and having first appeared before PW 2, were apprehended by the Sub-In-spector of Police (PW 21) after the latter received information from PW 23 that the two appellants had carried the severed head of a person. PW 21 seized the axe (M.O. III) and the half-pant (M.O, II) from the appellant Allad, having stains of blood, as per the seizure list, Ext. 2, in the presence of PWs 3 and 4. This was on 20-5-1977. On the day following, the other portion of the dead body was also produced for postmortem examination and the Medical Officer (PW 1) was of the definite opinion that that portion and the severed head belonged to the same person. PW 27, the son of the deceased, had identified the severed head and the trunk portion of the body as those of his deceased father.
13. There was, in addition, the evidence of PW 12, a relation of the appellants, that on 20-5-1977 at about 6 to 7 a.m., the appellants came to his house at Baripada and handed over some papers to be kept by him and it would appear from the evidence of the Assistant Sub-Inspector of Police (PW 20) attached to the Baripada Police Station that on 21-5-1977, he seized the papers as per Ext. 5, the seizure list, in the presence of PW 11. One of the papers was, in fact, Ext. H, the certified copy of the sale deed which, as testified by PW 11, had been handed over by the deceased to the appellants at the place of occurrence. This is yet another telling circumstance against the appellants and a strong piece of evidence corroborating that of PW 22.
14. There was the evidence of PW8 that on the day of occurrence at about 5 p.m., while he was returning home from his land, he found the two appellants going towards Birsinga when the appellant Hari was holding a spade and the appellant Allad Was holding a Tangia and something which looked like a human head. On his way home, PW 8 saw a decapitated body lying on the road side. This witness was cross-examined by the prosecution because he suppressed about the conversation of the appellants which he had heard and about which he had made a statement to the Investigating Officer But he did depose in the Court about the two appellants going armed, one of them carrying something which appeared to him to be a human head. In the deposition of this witness, the date on which he saw this had incorrectly been recorded to be the 29th May, 1977, which should have been the 19th May, 1977. As a matter of fact, the two appellants had been apprehended and kept in custody from the 20th May, 1977. The evidence of PW 8 would indicate another guilt-pointing circumstance against the appellants.
15. The evidence of the Investigating Officer (PW 26) would show thai while in custody, the appellant Allad made a statement to him on 21-5-1977 that he had thrown the bow and the arrow (M.O. V) without its head into the bushes and led him and the witnesses to the place near the southern side of village San Chatra and pointed out an Amari brush from where the arrow without its head containing stains of blood was seized by him as per Ext. 8, the seizure list. This evidence of PW 26 had been supported by PW 15. Their evidence would show that the statement of the appellant in custody had led to the discovery of M.O. V. The statement of the appellant Allad that he would show the place where he had thrown the arrow, is admissible under Section 27 of the Evidence Act. (See : 3SCR412 Chinnaswamy Reddy v. State of Andhra Pradesh). This would show that the appellant Allad was the author of concealment of M.O. V. We have earlier indicated in this judgment that the arrowhead had been embedded to the lung which had been removed at the time of the post-mortem examination.
16. There was the evidence of PW 26 that while in custody, the appellant Harihar made a statement that he had given the spade to Mukta Bewa (PW 7) and led him to her house and he (PW 26) seized the spade (M.O. VI) from the house of PW 7 on her production as per Ext, 6, the seizure list. This evidence of PW 26 had been supported by PW 15. Although PW 7 did not support this version of PWs 15 and 26 while she was examined by the prosecution for which she was put leading questions by it, she had slated in her cross-examination that the police officer took the spade from her house two to three days after the appellant Hari gave it to her.
17. The recoveries of M.Os. V and VI consequent upon the statements made by the two appellants would further support the evidence of PW 22, The Khaki pant (M.O. II) and the Tan--gja (M.O, III) seized by PW 21 at Bari-pada and the arrow without its head (M.O. V) seized by PW 26 consequent upon the statement made by the appellant Ailad contained blood, as found by-the Chemical Examiner, although no opinion could be given by the Sero-logist as to whether these articles contained human blood.
18. We thus find that the evidence of PW 22 was worthy of credence and had rightly been accepted by the trial court, Besides his evidence, there was sufficient other evidence to which reference has been made by us which would lead one to the only reasonable conclusion that the two appellants were the authors of the crime.
19. Relying on the principles laid down (1979) 47 Cut LT 330 Jadu alias Ghanashyam Patel v. State, it has been submitted before us by the learned Counsel for the appellants that the materials on record did not warrant the applicability of Section 34 of the Penal Code. It has been laid down in that reported case that. 'common intention' is an intention to commit the crime actually committed and each accused person can be convicted of that crime only if he has participated in the commission of the offence with the intention to commit the actual crime which was committed and the inference of common intention should not be reached unless it is a necessary inference deducible from the circumstances of the case. To constitute 'common intention, it is necessary that the intention of each one of the accused persons was known to the rest of them and was shared by them. Reference had been made therein to the principles enunciated in : 1975CriLJ243 , Hardev Singh v. State of Punjab.
20. As laid down by the Judicial Committee of the Privy Council in Barendra Kumar Ghose v. Emperor AIR 1925 PC 1 : (1925) 26 Cri LJ 431, Section 34 of the Penal Code deals with 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 had done them himself. It has been observed therein that in crimes as in other things, 'they also serve who only stand and wait.'
21 Common intention can be inferred from the surrounding circumstances and the conduct of the accused persons preceding, attending and subsequent to the occurrence. In the instant case, as we have noticed, the two appellants had not been pulling on well with the deceased and they had a motive for the commission of the offence. Both of them challenged and attacked the deceased and at the instance of one, the other shot an arrow. On the day following, they carried the severed head of the deceased with a bloodstained axe to Baripada where they were apprehended and the severed head was sent for post-mortem examination and the axe was seized. Both of them had gone to PW 12 and had kept some papers including Ext. 11 with him and the evidence of PW 22 was that the certified copy of the sale deed (Ext. 11) had been handed over by the deceased to them at the time of the occurrence prior to the assault on his person. Both of them had been seen by PW 8 with arms in hands and with an object which appeared to PW 8 to be a human head soon after the occurrence. During the course of investigation, incriminating articles, such as, M.Os. V and VI had been seized consequent upon their statements while in custody. These acts and conduct on the par' of the appellants would clearly establish that in furtherance of their common intention to do away with the life of the deceased, they attacked him and first the appellant Allad shot an arrow which pierced the lung and then they severed the head of the deceased. Undoubtedly, they had the intention of causing the death of the deceased and in furtherance of their common intention, they caused his death by sharp cutting and piercing instruments and by the handle of a spade by causing injuries sufficient in the ordinary course of nature to cause his death.
22. On a careful consideration of the evidence and after examination of the contentions raised before us on behalf of the appellants, we see no reason to take a view different from the one taken by the trial Court.
23. In the result, therefore, the appeal fails and the same is dismissed. The orders of conviction and sentences passed against the appellants are maintained.
P.K. Mohanti, J.
24. I agree.