K. C. BHANU, J. ( 1 ) THE accused in Sessions Case No. 498/1998 on the file of the learned IV Additional sessions Judge, Kurnool, filed the appeal, against the judgment of conviction and sentence, dated 22-1-2001. ( 2 ) THE facts leading to the filing of the appeal are stated in brief as follows. Smt. Harijana Subbamma, who was examined in this case as P. W. 1, lodged a report on 21-10-1998 with Taluk Police, kurnool, alleging that her husband-Danam-and his brother-Benjamin-were residing side by side in Harijanawada of B. Thandrapadu village. Moolinti Bhushanna-A-1-had a house beside the house of P. W. 1. A dispute had been going on between her family and A-1 with regard to the opening of a doorway by a-1 near her house. There was a Panchayat in that connection. The elders advised A-1 and his sons not to open the doorway. However, on 21-10-1998, at 9 a. m. , A-1 and his sons Lakshmanna-A-2, Nagalakshmaiah-A-3 and Madanna-A-4, attempted to open the doorway. Danam objected to A-1 to A-4 doing so. A-1 to A-4 deferred their attempt. On the same day night P. W. 1 and her husband-Danam were returning to their house. When they reached the thrashing floor of Charles at about 8. 00 p. m. , accused came running there from opposite direction. A-3 pushed P. W. 1 into a channel. A-1 and A-3 caught hold of Danam and A-2 stabbed her husband with a dagger in his abdomen. A-4 fisted Danam on his chest. Danam fell down. P. W. 1 raised cries on hearing which Benjamin came running to the scene of occurrence. A-1 and A-3 beat Benjamin with hands and a-2 and A-4 stabbed him with daggers and caused injuries. On hearing the "galata" two persons came there and separated Danam and Benjamin from the clutches of the accused. P. W. 1 stated in her report that she witnessed the incident in the illumination of a street tube light fixed to an electric pole at the scene of offence. Smt. Ayyamma, wife of benjamin, who was examined as P. W. 2, also rushed to the spot and witnessed the incident. P. Ws. 1 and 2 with the help of others took both Danam and Benjamin in an auto and admitted in the Government General hospital, Kurnool. Smt. Ayyamma, wife of benjamin, who was examined as P. W. 2, also rushed to the spot and witnessed the incident. P. Ws. 1 and 2 with the help of others took both Danam and Benjamin in an auto and admitted in the Government General hospital, Kurnool. Danam, husband of p. W. 1, was declared dead on the same day at about 10. 00 p. m. ( 3 ) ON the basis of Ex. P-1-FIR, P. W. 11-Head Constable, registered a case against the accused under Sections 302, 324 read with Section 34 of the Indian Penal Code. Inspector of Police, P. W. 14, took up investigation. He conducted inquest over the dead body of Danam in the presence of p. W. 7. He examined P. Ws. 1 and 2 and recorded their statements. The inquest report is Ex. P-2. P. W. 10 is the Doctor who conducted post-mortem examination over the dead body on Danam on 22-10-1998 on receipt of a requisition from P. W. 14 to do so. P. W. 14 found that the death of Danam was due to shock and hemorrhage as a result of the injuries received by Danam. He issued ex. P-6-post-mortem certificate. On receipt of information on 26-10-1998 that Benjamin died, P. W. 14 sent the dead body of Benjamin to P. W. 10. P. W. 10 conducted autopsy over benjamin and opined that the death of benjamin was due to shock and hemorrhage because of the multiple injuries received by him. He issued Ex. P-7-post-mortem certificate. The accused were arrested and remanded to judicial custody. Thus, on completion of investigation, P. W. 14 filed a charge sheet before the concerned magistrate s Court. The case was then committed to the Sessions Court. ( 4 ) THE learned IV Additional Sessions judge initially framed two charges. The accused pleaded not guilty and claimed to be tried. Subsequently; the charges were amended and four charges were framed on 21-7-2000 on the application of the prosecution. The case was then committed to the Sessions Court. ( 4 ) THE learned IV Additional Sessions judge initially framed two charges. The accused pleaded not guilty and claimed to be tried. Subsequently; the charges were amended and four charges were framed on 21-7-2000 on the application of the prosecution. The amended charges are: (1) under Section 302 IPC against A-2 for committing the murder ot Uanam, (2) under section 302 read with Section 34 IPC against a-1, A-3 and A-4 for committing the murder of Danam, (3) under Section 302 IPC against a-2 and A-4 for committing the murder of benjamin, and (4) under Section 302 read with Section 34 IPC against A-1 and A-3 for committing the murder of Benjamin. The witnesses who had already been examined by the date of the framing of the additional charges were recalled and further examined on the additional charges. To prove its case, prosecution examined 14 witnesses and exhibited 13 documents besides 9 material objects. On appreciation of the evidence on record, the learned Sessions Judge held that all the charges levelled against the accused were proved beyond all reasonable doubt. Accordingly, the learned Sessions Judge, by his judgment, dated 22-1-2001, convicted the accused and sentenced each one of them to suffer imprisonment for life. As against the judgment of conviction and sentence the accused filed the appeal. ( 5 ) LEARNED senior counsel appearing for the accused-appellants contended that p. Ws. 1 to 3 are highly interested witnesses and therefore their evidence should not be easily believed. If the evidence on record is closely scrutinized, it would be clear that all the accused did not have common intention to do away the lives of the deceased and the learned Sessions Judge erred on this aspect. Non-production of the wound certificate in respect of Benjamin is a lacuna in the case of the Prosecution. Therefore, the judgment of conviction and sentence should be set aside. On the other hand, the learned Public prosecutor contended that though P. Ws. 1 to 3 are interested witnesses, the evidence of all the eyewitnesses P. Ws. 1 to 3 and 5 is consistent and hence the evidence of the witnesses should not be doubted on the mere ground of interestedness. The Prosecution has established its case beyond all reasonable doubt and hence the appeal should be dismissed. 1 to 3 are interested witnesses, the evidence of all the eyewitnesses P. Ws. 1 to 3 and 5 is consistent and hence the evidence of the witnesses should not be doubted on the mere ground of interestedness. The Prosecution has established its case beyond all reasonable doubt and hence the appeal should be dismissed. ( 6 ) P. W. 14-Circle Inspector-conducted inquest over the dead body of Danam in the presence of P. W. 7 and P. W. 12 conducted inquest over the dead body of Benjamin in the presence of P. W. 8. Exs. P-2 and P-4 are inquest reports in respect of Danam and benjamin respectively. The cause of death of both the deceased as per the inquest reports was due to the injuries sustained by them which injuries could have been caused by daggers. ( 7 ) P. W. 10 is the Doctor who conducted autopsy over the dead body Danam. He found the following ante-mortem injuries1. A contusion red in colour on lower part of right side neck above the collar bone 3x2 cms. which can be caused by a blunt object including a fist blow. 2. Linear contusions 2 in number obliquely placed on front of left upper chest and collar bone 6x1/2 cm x 8 x 2 cm red in colour and the cause of injury will be similar as that of injury No. 1. 3. Two small superficial cut wounds present on left front of chest lower part near the chest bone 2 x 1/2 x 1 x 1/2 cm. and muscle deep elliptical in shape. These injuries would have been caused by a sharp object by dragging the sharp edge on the skin. 4. A stab wound on left side outer part of front of chest lower part, obliquely placed, elliptical in shape 3 x 1/2 cm. in its depth, it has cut the outer part of spleen into 11/2 cm. depth, spleen pale and contracted. Abdominal cavity contained 600 ml. blood. This injury is possible with the use of dagger. 5. Two small stab wounds on outer part of lower chest and abdomen, 8" below the axilla, one below the other obliquely placed 2 cm. x 1/2, cm. , 2 x1/2 cm. and chest cavity depth, in its depth the first wound pierced into the chest cavity and injured the left lung. Thoracic cavity contained 750 ml. of fluid blood. 5. Two small stab wounds on outer part of lower chest and abdomen, 8" below the axilla, one below the other obliquely placed 2 cm. x 1/2, cm. , 2 x1/2 cm. and chest cavity depth, in its depth the first wound pierced into the chest cavity and injured the left lung. Thoracic cavity contained 750 ml. of fluid blood. Lungs are pale. These injuries also are possible with a weapon like dagger. 6. A stab wound on front of lower abdomen in the left iliac fossp 12 cm. away from the umbilicus, 3 x 11/2 cm. through which small loops of intestines found protruded out, tearing of intestine found. The wound is elliptical in shape and margins are clean cut with pointed ends. This wound is also possibly caused by a dagger. 7. Superficial incised cut wound on right side lower outer abdomen near the iliac fosse 3x1 cm. and muscle deep. This injury is possible by using a dagger. ( 8 ) P. W. 10 opined that Danam died due to shock and hemorrhage as a result of the stab injuries. He issued Ex. P-6-post-mortem certificate. ( 9 ) ON 26-10-1998 P. W. 10 also conducted autopsy over the dead body of Benjamin and found the following external ante-mortem injuries. 1. A cured surgical sutured wound present on front of middle of abdomen, vertical in position 16 cm. in length with 11 stitches and abdominal cavity depth. Twodrainage tubes on outerparts of abdomen are present. 2. A sutured incised wound on middle of front of chest obliquely placed 2 cm. in length with 2 stitches. Margins are clean cut and elliptical shape and muscle deep. 3. A sutured stab wound on left side of front of abdomen with two stitches abdomen deep margins are clean cut 4 x11/2cm. 4. A superficial cut of skin deep present on front of left upper chest obliquely placed 8x3 cm. 5. A sutured incised wound on back of right side chest below the scapula 6 x1/2 x muscle deep with 6 stitches. 6. sutured wound on the back of right side chest on the scapular 11/2 x1/2 muscle deep. 7. A sutured incised wound on outer part of left forearm 10 cm. below the elbow 4 x 11/2 x muscle deep with two stitches. 8. 6. sutured wound on the back of right side chest on the scapular 11/2 x1/2 muscle deep. 7. A sutured incised wound on outer part of left forearm 10 cm. below the elbow 4 x 11/2 x muscle deep with two stitches. 8. Two sutured wounds in inner part middle of left upper arm 5 x 2 x muscle deep cutting the blood vessels and nerves 4 stitches present and another wound below it 3 x 11/2 cm. x muscle deep (incised injury) with two stitches. 9. A sutured incised wound on lateral part of left thigh middle 4 x 11/2 x muscle deep. 10. A sutured stab wound on the back of lower chest right side near thoracic 12th vertebrae 6 x11/2 cm. in its depth it has pierced into P-12 and L-1 vertebral cord bodies. 1000 ml. of blood present in the chest cavity. ( 10 ) THE Doctor opined that injuries 1 and 4 and injuries 2 and 10 were simply sutured and no surgical treatment was done. He further stated that the injuries were possible with a sharp edged object like a dagger or knife and Injury 10 was fatal because it affected vertebra and spinal cord. He was of the opinion that the deceased died due to shock and hemorrhage as a result of the multiple injuries. He issued Ex. P-7-post-mortem certificate. ( 11 ) THE evidence of P. Ws. 7 and 8 corroborates that of P. Ws. 14 and 12 and their evidence on the aspect of the cause of the death of the deceased persons was not shattered in their cross-examination. The evidence of these witnesses coupled with the evidence of P. W. 10 and the recitals in exs. P-6 and P-7 clinchingly establish that the deceased persons died of the injuries sustained by them and their death was homicidal. ( 12 ) NOW the question is whether the accused persons are responsible for the death of the deceased persons. ( 13 ) THE incident in question took place at 8p. m. on 21-10-1998 near the thrashing floor of Charles while P. W. 1 and her deceased husband-Danam were returning their home. ( 12 ) NOW the question is whether the accused persons are responsible for the death of the deceased persons. ( 13 ) THE incident in question took place at 8p. m. on 21-10-1998 near the thrashing floor of Charles while P. W. 1 and her deceased husband-Danam were returning their home. The motive suggested by the Prosecution for the accused to kill the deceased was that the accused persons had been trying for the past one week from before the incident in question to open a doorway in the narrow passage near the house of P. Ws. 1 and 2, for which p. Ws. 1 and 2 and the deceased persons objected, because the doorway, if opened, would cause a great deal of inconvenience to them. Even in the morning of the date of incident, accused made another attempt which was thwarted by the deceased persons, on account of which there took an altercation between the deceased persons on one hand and the accused persons on the other. ( 14 ) THE houses of P. Ws. 1 and 2 and the accused are situated side by side. A-1 claimed to have purchased the site from Charles. P. W. 1 too made the same claim. But she did not file title deed to prove her assertion. She admitted that A-1 got a right to open a doorway towards the narrow passage. She stated that a Panchayat was held to settle the dispute and the elders of the Panchayat, savaranna and Juttanna, tried to compromise the matter. Savaranna was examined as p. W. 13. He denied to have any knowledge about the disputes between the accused and the deceased persons and to have conducted any Panchayat in that regard. He was declared hostile. Nothing has been elicited in his cross-examination. So, the motive put forward by P. W. 1 appears to be false. Therefore, the Prosecution has failed to establish the motive on the part of the accused to commit the murder of the deceased persons. ( 15 ) MOTIVE being a state of mind; it may not be possible to know as to what is the motive for a particular offence. Therefore, the Prosecution has failed to establish the motive on the part of the accused to commit the murder of the deceased persons. ( 15 ) MOTIVE being a state of mind; it may not be possible to know as to what is the motive for a particular offence. Failure of the prosecution to prove motive in a criminal trial is not always fatal, especially when there is eyewitness to the occurrence and the evidence of the eyewitness inspires confidence and can be placed in the category of "wholly reliable evidence". But, when the prosecution suggests a motive and the motive is neither proved nor held sufficient, evidence of the witnesses has to be scrutinized with great care and caution. In this background, we now proceed to scrutinize the evidence on record. ( 16 ) P. W. 1 is eyewitness to both murders, whereas P. W. 2, wife of Benjamin, eyewitness to the murder of her husband. P. W. 1 stated that at 8 p. m. on the date of incident when she and her husband-Danam were returning to their house, near the hayrick of Charles the accused came in the opposite direction and attacked her husband with daggers. A-2 stabbed Danam in his stomach and on both sides of he abdomen. A-4 beat Danam with hands. A-2 pushed p. W. 1 into a side canal. Then she cried loudly. On hearing the cries, Benjamin rushed to the scene of offence. His wife-P. W. 2 followed him. A-1 and A-3 beat Benjamin with hands. A-2 and A 3 stabbed him with daggers. Mekala Nagalakshmaiah and harijana Nagalakshmaiah also witnessed the incident. They prevented the accused from attacking the deceased further. They took the deceased to the Hospital. Danam died on the same day at about 10 p. m. P. W. 1 lodged ex. P-1 report with the police. P. W. 2, wife of benjamin, stated that on hearing the cries of p. W. 1, she went to the scene of offence with her husband. She stated that A-2 and A-4 stabbed her husband with daggers and the other accused beat him with hands. ( 17 ) A perusal of Ex. P-1, which is the earliest version of the incident, completely corroborates the evidence of P. W. 1. P. W. 2 corroborates the evidence of P. W. 1 and ex. P-1. She stated that A-2 and A-4 stabbed her husband with daggers and the other accused beat him with hands. ( 17 ) A perusal of Ex. P-1, which is the earliest version of the incident, completely corroborates the evidence of P. W. 1. P. W. 2 corroborates the evidence of P. W. 1 and ex. P-1. Thus, it is clear that A-2 and A-4 stabbed Danam and Benjamin with daggers and no specific overt acts have been attributed to A-1 and A-3 Justbecausep. Ws. 1 and 2 are wives of the deceased persons, their evidence cannot be discarded on that ground. The scene of occurrence was just 50ft. from the house of P. W. 1 who was returning home at that time along with her husband and so her presence was quite natural. The FIR came to be lodged within 2 hours of the incident. Therefor,are ralse implication of the accused does not arise. P. W. 2 spoke about the attack on her husband-Benjamin only. Had she wanted to implicate the accused, she would have said that she witnessed the attack on danam also. She did not do so. P. Ws. 1 and 2 appear to be truthful witnesses and their evidence is thus reliable. ( 18 ) THOUGH the incident took place at 8 p. m. , P. W. 1 stated that a tube light was burning at a distance of 15 ft. from the scene of offence. This fact had also found place in ex. P-10-rough sketch of the scene of offence and Ex. P-1-FIR. Illumination of a tube light is sufficient to identify a known person. The accused are related to P. Ws. 1 and 2 and therefore there was no difficulty for the latter to identify the former in the illumination of tube light. Nothing has been elicited in their cross-examination to discredit their testimony on this aspect. ( 19 ) P. W. 3 is a resident of the same village-Thandrapadu where the offence took place. He spoke about the disputes between the accused and the deceased with regard to the doorway. On hearing some cries, he and p. W. 5 went to the place of offence. He stated that they saw the accused beating Danam and Benjamin. They stopped the accused from attacking the deceased further. He spoke about the disputes between the accused and the deceased with regard to the doorway. On hearing some cries, he and p. W. 5 went to the place of offence. He stated that they saw the accused beating Danam and Benjamin. They stopped the accused from attacking the deceased further. He did not state the specific attacks made by each of the accused, nor did he state that the accused were armed with daggers or any other weapons. He admitted in the cross-examination that by the time he and P. W. 5 reached the spot, Danam had already fallen on the ground and the accused were attacking benjamin. P. W. 5 stated that by the time he and P. W. 3 went to the spot the accused were beating Danam and Benjamin. He stated that a-2 and A-4 were armed with daggers. The statement of P. Ws. 3 and 5 that by the time they reached the scene of offence accused were beating the deceased, cannot be accepted, because P. W. 1 herself stated that the accused first attacked Danam and P. W. 2 stated that by the time she and her husband reached the place the accused had already stabbed Danam. ( 20 ) P. W. 4 is also a resident of thandrapadu. He stated that on coming to know that the deceased were stabbed, he went to the place of offence by which time both the deceased were lying on the ground with injuries. With the help of others he took the deceased to the hospital. He is not an eyewitness to the incident. His evidence is not of much help to the Prosecution. ( 21 ) P. W. 6 is the auto driver in whose auto the deceased were taken to the hospital. He supported the Prosecution to the extent. P. W. 7 is a mediator for the inquest conducted on the dead body of Danam and for the scene of observation report. He stated that a tube light was fixed to an electric pole at the scene of offence and it was in working order. P. W. 8 is a mediator for the inquest conducted on the dead body of Benjamin. P. W. 9 is the doctor who treated Benjamin and on the death of the latter he sent the death intimation to the police. P. W. 8 is a mediator for the inquest conducted on the dead body of Benjamin. P. W. 9 is the doctor who treated Benjamin and on the death of the latter he sent the death intimation to the police. P. W. 11 is the Head Constable who registered the case on the basis of ex. P-1-FIR. P. W. 12 is the Sub-Inspector of police who conducted inquest on the dead body of Benjamin. P. W. 14 is the Inspector of police and investigating Officer. ( 22 ) LEARNED senior counsel for the accused contended that except the evidence of interested witnesses, there is no independent evidence on record and, there was every possibility for the interested witnesses to implicate the accused falsely in the case. This court is unable to accept that contention. As we have already stated above, the evidence of P. Ws. 1 and 2 is trustworthy. The incident took place at a thrashing floor in a field. That place was not situated in the midst of the village. It has been elicited in the cross- examination of P. W. 1 that there were no other houses in the vicinity of the incident except the hayrick yard of Charles. Under these circumstances, non-examination of independent witnesses would not be fatal to the case of the Prosecution. ( 23 ) P. W. 14 stated that on learning that benjamin had regained consciousness in the evening of 22-10-1998, he recorded the statement of Benjamin at the hospital, The statement was not produced and no explanation was given by P. W. 14 for non- production of that statement. Learned counsel for the appellants relying on Gaddem jayarami Reddi, In Re and Kota Peda Nagesh v. State of A. P. contended that suppression or non-furnishing of the entire statements recorded by police would cause prejudice to the accused andhence the accused are entitled to acquittal. In those cases, the statements recorded by police under Section 161 Cr. P. C. , were either suppressed or not furnished. In such circumstance s, this Court laid down the law that suppression or non-furnishing of such statements would invite adverse inference to be drawn against the Prosecution. Therefore, the ratio laid down by this court is applicable to the facts of the present case, because in the case on hand the statement suppressed is not a mere statement recorded under Sec. 161 Cr. Therefore, the ratio laid down by this court is applicable to the facts of the present case, because in the case on hand the statement suppressed is not a mere statement recorded under Sec. 161 Cr. P. C. It is a dying declaration, as Benjamin died subsequently. ( 24 ) THERE cannot be any doubt that a dying declaration is a substantive piece of evidence. If a dying declaration is found true and voluntary, conviction can be maintained without any further corroborative evidence. When such is the law, P. W. 14 ought to have produced the dying declaration recorded by him. No explanation was offered by him for withholding such important document. As per illustration (g) to Section 114 of the evidence Act, the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. When not so produced and there is no satisfactory explanation for such non-production, Court can be asked to draw adverse inference against the party not producing it. In this case also, adverse inference can be drawn against the prosecution for non-production of the dying declaration of Benjamin. But, adverse inference can be drawn only with regard to the attack made on Benjamin and not on danam, because Benjamin was not present at the time Danam. was attacked, as admitted by the eyewitnesses. ( 25 ) IT has now to be seen whether such adverse inference affects the entire case of the Prosecution. It will not, in our view. The reason is that the eyewitnesses consistently deposed before the Court about the incident in detail and as already held above they are truthful witnesses. Therefore, the entire prosecution evidence cannot be thrown on that ground. ( 26 ) THE next contention raised by the senior counsel appearing for the accused is that A-1 and A-3 did not share the common intention to commit the murder of the deceased, inasmuch as they were not armed with any deadly weapons and only an omnibus allegation was levelled against them that they beat the deceased persons. ( 27 ) AS seen from the evidence of P. Ws. 1 and 2, only A-2 and A-4 were armed with daggers. Even Ex. P-1 reads that A-2 and a-4 were armed with daggers. The evidence of P. Ws. 1 and 2 and Ex. P-1 corroborates each other on this point. ( 27 ) AS seen from the evidence of P. Ws. 1 and 2, only A-2 and A-4 were armed with daggers. Even Ex. P-1 reads that A-2 and a-4 were armed with daggers. The evidence of P. Ws. 1 and 2 and Ex. P-1 corroborates each other on this point. ( 28 ) SECTION 34 IPC lays down the principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of the common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. It is well settled that common intention in this section presupposes prior concert or meeting of minds which has to be proved either from conduct or from circumstances or from any incriminating facts. It requires a pre-arranged plan,because 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 them all. The prior concert or meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. ( 29 ) EXCEPT the general statement that all the accused came in the opposite direction and attacked the deceased persons it is not the case of the Prosecution that any one of a-1 and A-3 was either armed with deadly weapon or assaulted the deceased persons. Had these two accused shared the common intention with A-2 and A-4 on account of any prior concert or pre-arranged plan, they would have carried some weapon and attacked the deceased. They did not do so. There is absolutely no evidence that A-1 and a-3 exorted A-2 and A-4 to attack the deceased persons. None of A-1 and A-3 expressed his intention by word or gesture to put an end to the life of the deceased persons. No doubt, A-2 to A-4 are sons of a-1. But that does not mean that there was a prior meeting of minds between them and just because of their relationship, it cannot be entertained that A-1 and A-3 shared common intention with A-2 and A-4. This aspect of the case has not been appreciated in a right perspective by the trial Court. But that does not mean that there was a prior meeting of minds between them and just because of their relationship, it cannot be entertained that A-1 and A-3 shared common intention with A-2 and A-4. This aspect of the case has not been appreciated in a right perspective by the trial Court. ( 30 ) IN view of the above discussion, we have no hesitation in holding that the prosecution had established its case beyond all reasonable doubt for the offence under section 302 IPC against A-2 and A-4 for causing the death of Danam and Benjamin and failed to prove the charges levelled against A-1 and A-3 and hence conviction against A-1 and A-3 is liable to be set aside. ( 31 ) IN the result, the conviction and sentence against A-2 and A-4 for the offence under Section 302 IPC for causing the death of Danam and Benjamin are confirmed. The conviction and sentence against A-1 and a-3 for the charges levelled against them are set aside. A-1 and A-3 are directed to be released forthwith, if not required in any other case. The appeal is accord ingly allowed in part.