M. Fathima Beevi, J.
1. The appellants, accused 1 and 2 in Sessions Case No. 35 of 1980 on the file of the Court of Session, Thodupuzha, have, in this appeal, challenged their conviction under Section 302 read with Section 34, I. P.C. and sentence to imprisonment for life by judgment dated 17-11-1981, on the charge that the accused in furtherance of their common intention committed murder by causing the death of one Basheer by cutting him with a chopper and stabbing him with a knife at about 7.45 p. m. on 5-3-1980 at the tea-shop of P. W. 2 at Upputhara in the high ranges, 32 kms. away from the Peermade Police Station.
2. Accused 1 and 2 are brothers. The deceased Baslheer is the son-in-law of P. W. 1. There had been ill-feeling between Basheer and the 1st accused, and a few days prior to the date of occurrence, the deceased Basheer remonstrated with the 1st accused about the quarrels that he used to have with his wife to the annoyance of the neighbours. An altercation ensued between the two, resulting in Basheer beating the accused. The prosecution case is that this incident constituted the motive for the crime. The case of the prosecution in brief is as follows. At about 6 p. m. on the date of the occurrence, accused 1 and 2 went to the tea-shop of P. W. 2 situated at about 6 ft. above the road on the east. The tea-shop consists of two rooms with a lean-to on the north, and has a verandah on the eastern side with entrance to both rooms. P. W. 2, the proprietor, was seated at the counter in the southern room. P. W. 3 Sasidharan was in the lean-to preparing tea. The accused were seated in the northern room. They remained in the tea-shop when at about 7 p. m. the deceased Basheer, in the company of P. W. 4, arrived there. Basheer took his seat in the southern room while P. W. 4 entered the northern room, and both had taken tea. At about 7.45 p. m., P. W. 4 after paying the cash, stepped out of the tea-shop to the road. Basheer then asking P. W. 4 to wait, entered the verandah and was about to pay the bill. At that time, the 1st accused who was in the northern room, advanced towards Basheer and dealt a blow on his back with a chopper, causing injury. Basheer turned on his side when the 1st accused again struck him with the chopper. Basheer warded off the attack, receiving an injury on his right thumb. The 2nd accused suddenly came out of the northern room and seeing him, Basheer ran to the court-yard. He fell on his back. Both the accused advanced towards him. The 1st accused again struck him with the chopper on the forehead and caused injuries. The 2nd accused who was armed with knife, inflicted penetrating injury on the chest. Both the accused thereafter took to their heels while Basheer moved forward for a few feet and fell on the tapioca plantation on the eastern side of the road. At the time of the occurrence a petromax light was burning inside the tea-shop. P. W. 2, who was in the southern room, P. W. 3 as well as P.W. 4 witnessed the occurrence.
3. P. W. 4 informed P. W. 1 the father-in-law of Basheer about what happened. P. W. 1 came to the tea-shop and found Basheer lying dead. The next morning, he lodged the first information at the Peermade Police Station at about 10 a. m. On the basis of Ext, P1 statement of P.W.1, a crime was registered against the accused and investigated. P. W. 12, the Assistant Sub-Inspector readied the scene and held the inquest on the dead body at 1 p. m. and prepared Ext. P7 report. He seized from the scene three pairs of chappals found scattered. The autopsy on the dead body was performed by P. W. 7 who issued Exhibit P4 certificate. The doctor noticed a penetrating wound 5 cm. in length in front of the chest over the sternum and medial end of the 6th rib, right side. The left end of the wound was 11/2 cm. higher in position than the right end. The wound had clean cut edges that were curved to each other and 2 cm. apart at the centre. The wound was directed backwards and downwards and 10 cm. in depth. It passed through the sternum, 6th rib right side, pericardium, right ventricle of the heart and the diaphragm and ended in the upper part of the left lobe of the liver. On the left end of the wound over the sternum there was some raggedness. On the liver, the wound was 2 cm. in depth and 2 cm. in length. The other injuries were: (1) an incised wound 6 cm. in length on the scalp from the centre of the forehead towards the back and right side, deep to the skull; (2) an incised wound on the right thumb 3 cm. in length from the root of nail splitting the distal phalanx; (3) an abrasion on the outer side of the right upper arm 1x6 cm. in size; (4) an incised wound on the back at the centre, 9 cm. in length and deep to bone and a clean incised wound 11/2 cm. in length and 1 cm. in depth at a point 2 cm. above and lateral to the last mentioned injury. The penetrating injury on the chest was certified to be fatal. The accused were arrested on 13-3-1980 and this led to the recovery of M. O. 3 chopper and M. O. 2 knife, On completing the investigation, P. W. 13 laid the charge against the accused.
4. At the trial, P. Ws. 2, 3 and 4, the eye-witnesses, supported the prosecution and narrated the case of the prosecution in detail. The accused had set up a case of private defence. According to them, a few days before the incident, the 1st accused had remonstrated with the deceased about his liaison with his wife. Irked by this, Basheer went to the shop of P. W. 2 in the company of P. W. 4 with the intention of attacking him. Basheer struck him on the face with a 2 cell electric torch, as a result of which he fell down. When Basheer attempted to strike him again he took a chopper from under an almirah and got up. He waved the chopper several times. When P. W. 4 caught him from behind, Basheer attempted to beat him again when his brother reached there running and saved him somehow or other. Basiheer struck the 2nd accused also with the torch and attempted to stab him with a knife; he wriggled himself free from the clutches of P. W. 4 and saved the 2nd accused. In the meanwhile, Basheer stabbed him on the leg and both he and his brother then fled from the place. It was also suggested that the 1st accused was examined for the injury by D. W. 1, the doctor attached to a rural dispensary and Ext. D1, the out-patient ticket, was produced in evidence, to probabilise the case that in the course of the incident the accused had sustained injuries. D. Ws. 2, 3 and 4 were also examined as defence witnesses.
5. The learned Sessions Judge rejected the defence version and accepted the prosecution case as true, believing the testimony of P. Ws. 2, 3 and 4. Mainly relying on their testimony the learned Judge found the accused guilty and convicted and sentenced them as aforesaid.
6. The appellants challenge the conviction. They urged that the conviction and sentence are not sustainable because the prosecution has not established the case by independent and reliable evidence. The general attack on the prosecution evidence is that P. Ws. 2, 3 and 4, the eye-witnesses, are either interested or are persons having animosity against the accused, that these witnesses have given only a distorted and twisted version suppressing the origin of the incident, that there is positive evidence to show that the witnesses have been put up after being tutored, that their evidence suffers from serious infirmities, there being material contradictions and inconsistencies in their versions. It is also stated that the material evidence has been kept back by the prosecution without satisactory explanation and, therefore, an adverse inference has to be drawn against the prosecution and it is unsafe to accept the prosecution evidence in such a case as the basis for the conviction. It has also been said that in any view, even if the prosecution evidence is accepted, the conviction against the 1st accused with the aid of Section 34, I. P. C. is not sustainable.
7. The learned Sessions Judge has based the conviction of the accused mainly on the direct testimony of the 3 eye-witnesses, Krishnankutty the proprietor of the tea-shop (P. W. 2), his son Sasidharan (P. W. 3) and Baby alias Thomas (P. W. 4) who was in the company of Basheer when he arrived at the tea-shop. These witnesses have narrated the prosecution case in detail. The version of P. W. 2 is that he was seated in the southern room near the counter when the occurrence happened and he had seen the entire incident from start to the end. P. W. 3 who was in the lean-to, preparing tea, came out seeing the first attack by the 1st accused with the chopper on Basheer, and standing in the northern room he had seen the rest of the incident. According to P. W. 4, he was standing on the road while Basheer was being attacked by accused 1 and 2. The version of P. Ws. 3 and 4 is substantially the same as that given by P. W. 2 and they corroborate each other on all material particulars.
8. It has been stated by the appellants' learned Counsel that there are discrepancies and inconsistencies which are material. As rightly pointed out by the Public Prosecutor, the discrepancies suggested are only on minor details. It is natural for the witnesses, when examined several months after the occurrence, to be not so precise as to where the victim and the assailant had been or their relative position as and when each blow was dealt. Such discrepancies which do not go to the root of the case or affect the substratum of the prosecution story cannot be a good ground for discarding the testimony of the witnesses. The main feature according to the learned Counsel for the appellants which goes to discredit the testimony of these witnesses is that they have suppressed how the occurrence commenced. It was pointed out that P. W. 5, a jeep driver, has given evidence that he had been to the scene of occurrence the same night and that he had seen in the court-yard damaged parts of an electric torch. The evidence that the 1st accused was examined by D. W. 1 the next day when he was found having sustained bodily injuries, considered along with the circumstances spoken to by P. W. 5, in the opinion of the learned Counsel, suggests that the defence version of the incident having commenced, on Basheer attacking the 1st accused with a torch is more probable and this part of the case has been deliberately suppressed by the prosecution witnesses. We are unable to accept this theory. P. W. 5 who had been treated hostile by the prosecution is contradicted on this evidence by P. W. 11. The inquest report incorporates a description of the scene. The investigating officer did not find any remnants of an electric torch at the scene. None of the witnesses has spoken to the fact that Basheer was holding a torch or that he had occasion to use the torch as a weapon of offence. The medical evidence that the accused had sustained injuries, strongly relied on for the defence, is also not conclusive. Ext. Dl, the out-patient ticket, does not give sufficient particulars to indicate the identity of the person examined by the doctor. D. W. 1 has not identified the 1st accused. The testimony of D. W. 1 and D. W. 4 also would not prove that it was the 1st accused that they had treated. It is not, therefore, possible on the evidence on record to hold that something more than what has been spoken to by P. Ws. 2, 3 and 4 has actually happened. There is nothing strange if the 1st accused on noticing the presence of Basheer in the tea-shop had started the attack as he had been (harbouring revenge against Basheer who, to his knowledge, was having illicit intimacy with his wife, and had also picked up a quarrel with him a few days prior to the date of occurrence. P. W. 2 is a natural and probable witness. He was in the tea-shop the whole day. He had admitted that during the day time, both the accused visited the tea-shop more than once. He did not say that he had noticed any weapon with the accused before the actual occurrence. The only ground stated for discrediting P. W. 2 is that he had animosity against the 1st accused for which there is no sufficient basis. P. W. 2 has frankly admitted that on a prior occasion, the 1st accused had used abusive language. He has also stated that the behaviour of the 1st; accused on few occasions had been not good. All the same, the accused continued to be customers in this shop and if there had been any bitterness between P. W. 2 on the one hand and the accused on the other, one would not have expected the accused to remain in the tea-shop even after taking tea for quite some time with the tacit permission of P. W. 2. We are not, therefore, prepared to accept the story that P. W. 2 is a person who has an axe to grind against the accused and, therefore, interested in sup-pressing the truth and subscribing to a story which is not true. We have been taken through the entire evidence of P. W. 2 which we find acceptable and convincing. P. W. 3, the son of P. W. 2, was present in the tea-shop. His presence is not disputed. The situation of the lean-to, the entrance to the two rooms and the front portion which is not covered, would enable P. W. 3, even if he had been within the lean-to or the northern room, to witness what happens on the verandah and on the road. There was clear visibility in the tea-shop where the petromax light was burning. We do not think that any improvement has been made by P. W. 3 in his version to indicate that lie has been tutored. Similarly, P. W. 4 was at the scene even before the incident started and at the time of the incident he was on the road. In narrating the incident, P. W. 4 has a case that the 2nd accused inflicted the fatal stab while Basheer fell on the courtyard before the 1st accused dealt two more blows with the chopper on the forehead of the deceased. Though P. W. 4 has thus improved upon his version, in the chief examination, he has stated that the attack by accused 1 and 2 while the deceased was lying on the court-yard was almost simultaneous. As already stated, when witnesses recount what happened much earlier, slight inconsistencies do occur and that by itself may not be sufficient to disbelieve the version when there is substantial corroboration on the material aspects. It has come out in evidence that these witnesses before deposing at the trial had been spending the night on the verandah of the police quarters and it is, therefore, suggested tihat the witnesses were not free agents and their version is not spontaneous. When the witnesses freely admitted having been given shelter by police before they appeared in the Court, and did not state that there had been any occasion for being inspired by the investigating agency, we do not think that the circumstance that witnesses, hailing from the high ranges, getting such assistance before appearance in Court from public men is sufficient to challenge the veracity of their statement. There had been no other material circumstance pointed out to discredit the testimony of these witnesses who support the prosecution.
9. We may refer to the arguments that material evidence has been withheld by the prosecution and, therefore, the evidence of P. Ws. 2 to 4, which according to the defence, is not independent is insufficient to warrant a conviction. The presence of Varkey, a customer and Ravi, milk-vendor, at the place of the occurrence is spoken to by P. Ws. 2 and 3. C. W. 5 Varkey and C. W. 6 Ravi had been cited as eye-witnesses. The prosecution has not chosen to examine these witnesses at the trial. The non-examination of the witnesses in the circumstances of the case does not warrant any adverse inference. It is not necessary for the prosecution to call every person who has seen the occurrence as a witness. If the witnesses examined are sufficient to unfold the narrative of the prosecution case, it is not necessary tlhat the evidence is multiplied by examining other witnesses also. When P. Ws. 2, 3 and 4 have supported the prosecution case and there is no material ground for inferring that their evidence is in any way interested or biased, the non-examination of C. Ws. 5 and 6 in the case is of no consequence. We find that there is no serious infirmity in the evidence of P. W. 2 which is corroborated on all material particulars by the evidence of P. Ws. 3 and 4 and the evidence thus tendered by the prosecution clearly establishes the case against the accused to warrant the conclusion that the occurrence happened in the manner alleged by the prosecution. It would necessarily follow that accused 1 and 2 participated in the incident that resulted in the death of Basheer.
10. The question then arising for consideration, is what offence the accused have committed. It cannot be disputed that the 2nd accused, who had inflicted the fatal injury with a deadly weapon like M. O. 2 knife had the requisite intention to cause the death or such bodily injury sufficient in the ordinary course of nature to cause death. The 2nd accused had no provocation or justification to cause the death of Basheer and his act would amount to murder. The conviction of the 2nd accused under Section 302, I. P. C. is therefore unassailable and has to be confirmed.
11. We do not, however, agree with the prosecution that the 1st accused can be convicted for the offence punishable under Section 302, I. P. C. with the aid of Section 34 of the I. P. C. The overt-acts attributed to the 1st accused are that he struck the deceased Basheer with the chopper before the 2nd accused used the knife and caused the fatal injury. There had been no act on the part of the 1st accused either by words or by dead calling for assistance or aiding the 2nd accused in committing the murder. He did not exhort the 2nd accused and there is no evidence that the 2nd accused came out of the tea-shop at the behest of the 1st accused. There is no proof of a pre-arranged plan or prior concert between the two. The mere fact that both accused 1 and 2 came together to the tea-shop, a place ordinarily visited by the local labourers, by itself is not sufficient to make the 1st accused liable for the impulsive acts committed by the 2nd accused, in the absence of proof that the act was committed in furtherance of their common intention. The essence of Section 34, I. P. C. is simultaneous consensus of mind of persons participating in the criminal action to bring about a particular result. Before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of both. It is not enough to have the same intention independently of each other. It is true that the common intention may develop in the course of the commission of offence. But it must precede the act constituting the offence. There is no material to infer on the facts and circumstances of the case that there had been a sharing of the intention to commit murder by accused 1 and 2 or that the 2nd accused used the knife in causing the fatal injury in furtherance of the common intention of both accused 1 and 2. We cannot, therefore, uphold the conviction of the 1st accused under Section 302, I. P. C. He could be held liable only for the individual act he has committed. The medical evidence clearly shows that in spite of the fact that a weapon like M. O. 3 chopper has been used by the 1st accused, the injury caused is only simple hurt. The offence made out against the 1st accused is thus only one punishable under Section 324, I. P. C. His conviction has to be altered to that under Section 324, I. P. C. and the sentence limited to imprisonment he has already undergone.
12. In the result, the appeal is allowed to the extent of setting aside the conviction and sentence against the 1st accused under Section 302, I. P. C. His conviction is altered to one under Section 324, I. P. C. and the sentence is limited to a term of imprisonment which he has already suffered. The conviction and sentence against the 2nd accused are confirmed.