M. Fathima Beevi, J.
1. The three appellants challenge in separate appeals their conviction and sentence by the judgment dt. 23-12-1981 in SC No. 88/1981 of the Sessions Court, Trivandrum. The appellants were convicted Under Sections 302 and 449 r/w. Section 34 I.P.C and sentenced to imprisonment for life for the former Offence and rigorous imprisonment for 7 years for the latter both sentences being directed to run concurrently.
2. Stephen (A1) aged 24, Suresh Kumar (A2) aged 22 and Dileep Kumar (A3) aged 22 were tried for the murder of one Revindran alias Revi. Stephen was charged for the substantive offence Under Section 302 I.P.C while all the 3 accused were charged with the aid of Section 34 I.P.C for the offences Under Sections 302 and 449 of the Penal Code.
3. The incident happened at midnight inside the house of Kamalakshi (P.W. 2) in a village by name Olathanni, 4 Kilometres away from Neyyattinkara Police Station. P.W. 2 a rich widow was living in the house, while her only daughter P.W. 1 is permanently residing at Trivandrum. The deceased Revi aged 22, a grand nephew of Kamalakshi's late husband had been living in the house for past several years as an employee and dependent. P.W. 3 Joy aged 13 a domestic servant also was staying with P.W. 2 besides a maid servant. Theft of valuables including cash and gold ornaments, occurred in the house of P.W. 2 on 2-5- 1981. Revi was interrogated by the police in that connection.
4. On May 19, 1981, Revi and Joy were sleeping side by side on two mats spread in the 'Adachukootupura'. At about midnight Joy woke up getting wet. He noticed blood on Revi's bed. P.W. 2 came out from her room, when Joy shouted, and saw Revi lying in a pool of blood with injury on the neek and breathing his last. It was at about 2'o clock in the night. The exit door of the room which could be opened from outside was found open and the telephone was seen out of order. The gate on the wall separating the private market on the north was also seen opened. On getting the message from her mother, P.W. 1 arrived at the place in the early hours and lodged the complaint before the police.
5. The crime was registered by the Sub Inspector of Police on recording Ext.P1 statement of P.W. 1 at about 8.45 p.m. on 20-5-1981 without naming any person as accused. P.W. 18 the Circle Inspector of Police investigated the crime. After the inquest, the autopsy on the dead body was performed by P.W. 12. The death as certified resulted from the injury to the neck structure, described in Ext.P7 as an incised chop wound 15 X 5 cm. horizontally placed on the left side of face and neck. The witnesses were questioned and the accused were arrested on 2-6-1981. The charge was laid against them on completing the investigation.
6. According to the prosecution, the accused in furtherance of their common intention committed murder, Stephen having trespassed into the room and caused the death of Revi by cutting with a chopper, while Suresh Kumar managed the Alsatian dog left unleashed inside the room and Dileep Kumar kept a guard outside the compound. The motive alleged is that the theft on 2-5-1981 was committed by these accused persons with the connivance of Revi and they were infuriated when informed by P.W. 5 that Revi threatened to divulge the truth. The plea of the accused was one of total denial stating that they have been falsely implicated.
7. The prosecution in the absence of any eye-witnesses to the occurrence, sought to establish the charges by circumstantial evidence. The learned Sessions Judge accepting the prosecution evidence found the accused persons guilty, and convicted and sentenced them as aforesaid.
8. The appellants challenged the findings of the learned Judge as wholly unsustainable and built on surmises and flimsy evidence, and urged that the court below has seriously erred in evaluating and appreciating the circumstantial evidence. The learned Counsel for the appellants submitted that the prosecution evidence is highly artificial and unreliable, the circumstances spoken to are not incriminating or inconsistent with the innocence of the accused and no inference of guilt could be drawn on the basis of the materials relied on by the prosecution. It was further stated by Shri. M.N. Sukumaran Nair the learned Counsel appearing for the appellant Dileep Kumar that even when the entire evidence is accepted, there is no scope for invoking Section 34 of the Penal Code to hold that the 3rd accused is liable for the act, if any, committed by other persons.
9. Shri. Sankaran Nair the learned Public Prosecutor maintained that the conviction is proper. He submitted that the circumstances relied on are statifactorily established and such circumstances are incompatible with the innocence of the appellants and are conclusive, unerringly pointing to the guilt of the appellants. The common intention of the appellants, it is stated is readily gatherable from the proved facts.
10. The law is well settled that in cases of circumstantial evidence, the circumstances on which the prosecution relies must be consistent with the sole hypothesis of the guilt of the accused. The court before reaching the finding of guilt has to determine on proper and careful evaluation of circumstances, whether they are compatible with any other reasonable hypothesis. The test that requires the exclusion of other alternative hypothesis is far more rigorous than the test of proof beyond reasonable doubt. See : 1981CriLJ325 Shankarlal v. State of Maharashtra.
11. The persuasive presentation of the case by Shri.M.N. Sukumaran Nair initially induced some hesitancy in our minds but on a closer consideration of the evidence, we are not inclined to disturb the holding by the court below. The nature of the crime and the manner in which it has been accomplished particularly show that it was a cold-blooded, pre-planned and brutal murder. Revi was attacked in his bed at midnight. The assailant by dealing a single blow with a sharp cutting instrument caused the death of the victim almost instantaneously and escaped unnoticed even by P.W. 3 sleeping in the same room. The evidence of P.Ws.1 to 4 on the broad features of the case is unassailable. Their narration is corroborated by the medical evidence and that of the investigating officer who held the inquest, P.Ws.2 and 3 were the inmates in the house P.W. 1 and 4 reached the scene after the incident. P.Ws.2 and 3 are consistent that Revi was sleeping inside the room when the occurrence happened and there had been none other than P.Ws.2.3 and a maid servant in the household on that night. The Alsatian dog in the house did not disturb the intruder. The assailants had gained entry, by opening the eastern door of the Adachukootupura after puncturing the telephone wire from outside, with the sole object of murdering Revi. They escaped undetected after washing of blood at the tap. through the entrance on the northern compound wall. Undoubtedly someone among them had adequate knowledge about the premises and the victim and aided the murderous assault on Revi while lying in the bed, around 2O' clock in the night.
12. The prosecution examined P.W. 5 to prove the alleged motive. P.W. 5 has turned hostile. Suresh Kumar (A2) is the elder brother of P.W. 5. These brothers related to P.W. 2 were domestic servants in her house for some time. They used to visit the house and do washing and feeding the cattle and the dog. Dileep Kumar (A3) studying in college at Dhanuvachapuram is an associate of Suresh Kumar, Stephen of Danuvachapuram is a notorious criminal. These three persons have been subsequently charge-sheeted for theft committed in the house of P.W. 2 They were seen together at least at three places during the night the incident happened. They were seen first making deliberations and later proceeding towards the west. Al and A2 were seen carrying choppers at about 10' clock, when they were seen later A2 alone had a weapon. P.Ws.6 and 7 are the witnesses who speak to that fact. Soon after the arrest of Stephen, M.O.5 chopper was recovered from a place not far off from the scene of occurrence. The chemical analysis revealed that the chopper was stained with human blood. The purchase of two choppers by accused 2 and 3 on 17-5-1981 was spoken to by P.W. 8. One of the choppers had been recovered at the instance of A2. These are the circumstances the prosecution has mainly relied on to bring home the guilt of the accused.
13. Stephen was arrested on 2-6-1981. M.O.5 was recovered Under Ext.P4 the same day. P.Ws.9 and 10 are the attestors to the mahazar. P.W. 17 the Deputy Superintendent of Police who interrogated the accused has proved Ext. P4(a) the confessional statement. The chopper was recovered from the bed of the river a little to the east of the house of P.W. 2. The lane passing along the side of the house leads to the 'Kadavu' at that place. The distance is about half a mile. There is no material to show that the statement leading to the discovery was made by inducement or threat and not voluntarily. There is no infirmity in the recovery effected. P.Ws.9 and 10 are not discredited. The fact that blood-stains could be detected on chemical analysis would not arouse any suspicion. The recovery was about two weeks after the occurrence and the weapon was embedded in the sandy river bed. When exposed, blood would clot and stick to the surface and need not necessarily disappear altogether when submerged in sand and water. The recovery of a chopper stained with human blood at the instance of the appellant is proved. The possession of the weapon and its concealment by the appellant are the necessary inference and in the absence of plausible explanation such possession and concealment would be, incriminating circumstances pointing to the guilt of the appellant Stephen.
14. P.W. 6 Rajayyan has his family house near the residence of the appellant Dileep Kumar (A3). His wife's place is in Amaravila 4 kilometres away where he has his ration card and is also a voter. P.W. 6 was in the family house at the material time attending his sickly mother. He is a cart-man. On the date of the occurrence at about 10 p.m., while he was returning home after collecting wages, he saw the three appellants on the lane in front of the house of Dileep Kumar engaged in coversation. Later on at about 1 O' clock in the night, the witness was attracted by the barking of dog and on flashing the torch he saw the three appellants going along the lane westward. Al and A2 then carried choppers and A3 had a torch. The witness was told on his query that they were proceeding to a place on the other side of the river on the west and had been carrying choppers to scare away the dogs. P.W. 6 had known these persons earlier and because of the casual talk had the occasion to closely observe the identity of the persons and the arms they carried. The testimony of this witness had been attacked as artificial and unbelievable. P.W. 1 his younger brother was also examined to contradict him. The evidence of P.W. 1 has been rejected for cogent reasons. P.W. 6 was not however been shaken and his evidence appears to be impressive and convincing. He admitted that he did not have any suspicion until the arrest of the accused and did not mention the fact to anyone before he was questioned by the investigating officer. We see nothing artificial in the version or abnormal in the conduct of the witness.
15. P.W. 7 is an aged person who resides on the eastern side of the river. He had duty to watch the property of one Manian Pillai. He was on his way to the farm, when he met the three appellants at about 2.30 a.m. in the night on the river bank. He saw them going eastward and crossing the river and Suresh Kumar (A2) carrying a chopper, while Stephen (Al) was unarmed. Stephen's clothes were seen drenched, all the three had taken their bath. They told P.W.7 that they were returning after visiting a sick person and explained that the chopper was to scare away dogs. P.W.7 said that he did watch the persons from a short distance and then came near them and indulged in coversation. There may be little fringes and embellishments in the narration, but the substance of the evidence is that the witness did see the appellants together at that odd hour crossing the river and only one among them had then a chopper. The place where they met P.W.7 is close to the spot where M.O.5 was seen concealed. P.W.7 also did not tell the villagers that he saw these persons and did not then suspect any foul play.
16. Persons react to situations in different modes. It cannot always be expected that the villagers have the civic sense to report all matters that came to their notice. P.Ws.6 and 7 could not be expected to voluntarily get themselves involved in matters of sensation. Therefore the evidence of P.Ws.6 and 7 cannot be discarded for the omission to openly declare what they have seen, before they were traced and interrogated by the police. They cannot also be treated as casual or chance witnesses. They are probable witnesses by standards of rural life. They had not a mere glimpse of the three pedestrians but a close vision and a short talk. They could therefore fix up the identity with certainty and that evidence can be safely believed.
17. The testimony of P.W. 8 who said that A-2 and A-3 purchased two choppers from his shop on 17-5-1981 and identified M. Os. 5 and 6 also does not suffer from any infirmity, as argued for the appellants. He is a petty trader at Parassala. Articles stored for sale and disposed of by such persons could be identified by them without much endeavour. P.W. 8 had the opportunity to specially recollect the occasion and the customers because one of the choppers was got sharpened by him. P.W. 8 has no axe to grind against the appellants or any particular interest in the prosecution. There is no reason to disbelieve the witness or discard his testimony.
18. Thus there is complete chain of circumstances in the case to connect the appellants with the crime. The three appellants were together on the night the incident happened. Two of them were carrying choppers procured with a purpose. They proceeded towards Olathanni on one side of the river with the choppers and returned to the other side after concealing one of the choppers. The incident happened in the meantime. The weapon concealed was found stained with human blood. The inference is irresistible that these persons had a common design and had committed the crime and such one of them had participated in the criminal action. The constitution of the group is significant. Suresh Kumar is one who had adequate knowledge of the affairs in the house of 2 and was in a position to lead the others and guide them. Dileep Kumar the college student associated himself with Stephen the confirmed criminal and Suresh Kumar who knew the victim. Their preparations two days before the incident, the deliberations on the date of the occurrence and the movements in the night undoubtedly reveal a common design and a guilty mind. The appellants have no explanation for the circumstances proved against them. Their conduct is not capable of being explained on any reasonable hypothesis of the innocence of the appellants.
19. The learned sessions judge has arrived at the definite finding that the totality of the circumstances leads to the only conclusion that the first accused who with the assistance of the 2nd accused has committed the overt act of murdering Revi as alleged by the prosecution and the circumstances exclude the reasonable possibility of anyone also being the real culprit. We are in agreement that within all human probabilities the act must have been done by these appellants and none else. Dealing with the case of A3 the learned Judge said :
In this case there was not merely a planning by the 3rd accused but also there was active participation in the prosecution of the matter and he has accompanied accused 1 and 2 who were armed with weapons purchased by him also, and one of them has actually used one of the choppers for committing the overt act of murder. He was found in the company of these accused soon after the incident also. Nothing other than a common intention spells out of the above-said circumstances just as in the case of the 2nd accused. Hence the 3rd accused also has to be trapped in Under Section 34 of the I.P.C.
20. There is no direct evidence that A3 stood guard outside when Al accomplished the act. His presence in the company of accused 1 and 2 as spoken to by P. Ws. 6, 7 and 8 would prove that he had been with the others before and after the murder. According to the learned Counsel this circumstance by itself is not sufficient to conclude that he participated in the criminal act or shared the common intention to commit murder. Section 34 of the Penal Code provides that when a criminal act is done by several persons in furtherance of a common intention, each of such persons is liable for that act in the same manner as if it were done by him alone. To fix constructive liability to each of several accused Under the Section, there must be participation in action with common intention though the different accused might have taken different part. The participation must be in doing the act and not merely in its planning. The prosecution must necessarily show the existence of a common purpose or design or enter prize and participation in action with common intention. A criminal act in the broadest possible sense would cover conduct of any kind on the part of a person whether active or passive which tends to support the common design. A criminal act consists of the entire bundle of acts or omission tied together with the chain of common intention that have combined to constitute the offence. The acts committed by different confederates in the criminal action may be different. But all must in one way or other participate and engage in the criminal enterprise. One may stand guard to prevent any person coming to the relief of the victim or otherwise facilitate the execution of the common design. Such a person also commits an act as much as his co-participant actually committing the planned crime. The essence of Section 34 is a simultaneous consensus of the minds of several persons participating in the criminal action to bring about a particular result. When the scheme is carried out and the murder turns up according to the pre-arranged plan the very presence of the person would be an act which has contributed as effectively to the perpetration of the murder as the actual act of killing itself. It reflects the unity of the criminal behaviour which resulted in the offence. Thus participation in the commission of the offence in furtherance of a common intention in discernible from the conduct of the appellants.
21. A3. as pointed out, has no explanation for his association with Al the criminal, at odd hours in the night and in a place nearabout the place of occurrence. A brand new chopper purchased and specially sharpened by accused 2 and 3 was possessed by Al and used for committing the crime. A3 was in the company of Al when he carried the weapon and concealed it later. All these clearly reveal the community of the design and participation by all the three appellants in facilitating the execution of the common design. Section 34 is therefore attracted and has been properly applied to hold the appellants guilty. The conviction in our opinion is proper and has to be confirmed.
In the result all the appeals are dismissed confirming the conviction and sentence.