JUDGMENT : A.K. Mishra, J. 1. Dr. A.K. Mishra, J. In this appeal, the sole appellant has challenged his conviction U/s. 302/34 of the Indian Penal Code, 1860 (herein after referred as "I.P.C." for brevity) and sentence to undergo imprisonment for life vide judgment dtd. 26.06.2010 passed by learned Addl. Sessions Judge, Malkanagiri in C.T. Case No. 71 of 2009. 2. Tersely put, the prosecution case is that on 16.07.2009 at 12 P.M. midnight in village Potrel while the informant along with her husband (deceased) and children was sleeping in their house, the accused came and called the deceased. The deceased came outside. His wife, informant and son followed him. Accused dragged him to the backside of the house. A Dibiri light was burning. Three to four unknown persons waiting there, hacked the deceased and fled away. The deceased succumbed to his injuries. Accused also ran away. Hearing haullah the villagers gathered. The deceased was found lying dead at the spot. On the next day morning a village meeting was held at the instance of the informant. The accused confessed his guilt. Thereafter a written report, scribed by P.W. 8, was lodged by the wife of the deceased. The said report was registered as Orkel P.S. Case No. 21 dtd. 17.7.2009 U/s. 302/34 I.P.C. Investigation was taken up by P.W. 9. During course of investigation inquest was made, post mortem was conducted by the doctor (P.W. 10). The accused was arrested and forwarded to Court on 19.07.2009. After completion of investigation, charge-sheet was submitted and learned S.D.J.M., Malkanagiri took cognizance in G.R. Case No. 134 of 2009 and committed the case to the Court of Sessions. Accused faced charge U/s. 302/34 I.P.C. 3. The plea of defence was denial simplicitor. In order to prove its case prosecution examined 10 witnesses in all. Defence examined none. P.W. 1, 2 and 3 are co-villagers who are declared hostile. P.W. 4 is the informant who proved F.I.R. (Ext. 5). P.W. 5 is the son of informant and deceased. Both P.Ws. 4 and 5 are eye witnesses. P.W. 6 an immediate neighbour of informant stated that while he was coming to the spot hearing haullah, apprehended the accused who was running away but finding him to be a co-villager, allowed him to go. P.W. 7 is a witness to the inquest and seizure. Both P.Ws. 4 and 5 are eye witnesses. P.W. 6 an immediate neighbour of informant stated that while he was coming to the spot hearing haullah, apprehended the accused who was running away but finding him to be a co-villager, allowed him to go. P.W. 7 is a witness to the inquest and seizure. As stated above, P.W. 8 is the scribe of the F.I.R. P.W. 9 is the investigation officer while P.W. 10 is the doctor who conducted post mortem examination vide his P.M. report (Ext. 8). Eight documents such as F.I.R., inquest report, seizure lists, dead body challan, P.M. report, etc. are exhibited on behalf of prosecution. 4. Learned Addl. Sessions Judge relied upon the versions of two eye witnesses, P.Ws. 4 and 5, who are the wife and son of the deceased and the extrajudicial confession of accused in the meeting. He also believed the Dibiri light theory for identification of the accused who was a co-villager. The trial court substantiated the medical evidence to arrive at the finding that the death of deceased was homicidal in nature. He held that the act of the accused in calling and dragging the deceased in the dead of night was the conduct commensurable to common intention with unidentified culprits for murder of the deceased and accordingly he convicted the accused and passed sentence as stated above. 5. Learned counsel for the appellant Mr. J.K. Panda buttressed his contentions; that (i) the lone accused-appellant having been charge-sheeted, it could not be said that he had common intention with four unknown persons only because he had called the deceased from his house to the outside and for that the conviction on the principle of vicarious liability is not legally sustainable; (ii) The evidence of P.Ws. 4 and 5, the wife and son of deceased are discrepant as to the act and use of weapons for which both of them should have been disbelieved; (iii) The charge is defective for having indicted the sole accused with Section 34 of I.P.C. for which the defence is highly prejudiced; and (iv) The weapon of offence is neither seized nor is the motive established and in such circumstances, benefit of reasonable doubt should have been extended. 6. Learned Addl. Standing Counsel Mr. Zafarulla, per contra submitted that when the eye witnesses are near relatives and discrepancies are minor, absence of motive is not fatal. 6. Learned Addl. Standing Counsel Mr. Zafarulla, per contra submitted that when the eye witnesses are near relatives and discrepancies are minor, absence of motive is not fatal. The death of deceased due to injuries being proved homicidal and the role of accused in furtherance of common intention with unknown culprits being established beyond reasonable doubt, the error in charge is not prejudicial to the defence and no failure of justice has been occasioned warranting interference U/s. 464 of the Code of Criminal Procedure (in short 'Cr.P.C.'). He further submitted that the evidence of witnesses declared hostile cannot be wiped out and reading the evidence of P.W. 3 with other eye witnesses, it could not be said that learned court below had committed mistake in appreciating the evidence. He supported the judgment of conviction and sentence on the grounds stated therein. 7. As an appellate court, we onerously surveyed the evidence carefully. 8. The doctor (P.W. 10) while conducting post mortem on 18.7.2009 found following four cut injuries:- (i) Cut injury over the left side of the neck extending from left occipital to the left nasal region of size 10" X 0.6" X 1"; (ii) Cut injury extending from left occipital to the left neck region of size 15" X 2" X 3"; (iii) Mandibles of both the sides cut into pieces, injury extending up to oesophagus, larynx and trachea of size 10" X 2" X 3"; and (iv) Cut laceration over the left shoulder of size 2" X 0.5" X 1". and opined that those injuries were sufficient to cause death in ordinary course of nature. The time of death was within 36 hours which confirmed the incident dated 16.7.2009. According to him the death was homicidal in nature and the injuries were caused by sharp cutting weapon. The medical evidence corroborates the ocular evidence of P.Ws. 4 and 5. The substratum of the prosecution case as to homicidal nature and its time stands substantiated by legal evidence. 9. P.W. 4 the wife and P.W. 5 the son of deceased have testified that while they were sleeping, in the midnight the accused came and called the deceased. She and her son came out with the deceased. 4 and 5. The substratum of the prosecution case as to homicidal nature and its time stands substantiated by legal evidence. 9. P.W. 4 the wife and P.W. 5 the son of deceased have testified that while they were sleeping, in the midnight the accused came and called the deceased. She and her son came out with the deceased. P.W. 4 is categorical that the accused dragged the deceased to the backside of their house holding his hands, they found four unknown culprits with the accused and accused along with those four unknown persons killed her husband by a tangia whereafter she raised haullah. P.W. 5 the son of deceased also corroborated the same stating that accused took the deceased to the backside of their house holding his hands and by then four unknown persons were with the accused who killed his father and left the spot along with the accused. The wife of deceased P.W. 4 has categorically admitted that they had no previous enmity with the accused. She has also stated that a Dibiri light was burning in their house. Thus, the eye witnesses had no axe to grind against the accused. Their presence was natural. Fact remains that the wife and son would not leave the real culprit to escape. The accused is a co-villager. A co-villager can be identified even in the dark night by his voice. P.Ws. 4 and 5 are truthful to their testimonies and are wholly reliable witnesses. Nothing has been elicited to discredit them. From the above evidence of P.Ws. 4 and 5 it is clearly proved that accused came, called the deceased outside in the dead of the night, dragged him to the backside and along with four unknown culprits, hacked him to death. 10. The wife P.W. 4 has stated that the weapon of offence was tangia while the son has not stated anything. This omission by son is not negation of mother's assertion about weapon. P.W. 6, the adjoining neighbour of the deceased has corroborated stating that hearing haullah when he was approaching the spot, found the accused running, he chased him and caught hold of him and thereafter released him as he was his co-villager. Then he found the dead body at the spot lying in the backside of the house with bleeding injuries on face and neck. These evidence of P.Ws. Then he found the dead body at the spot lying in the backside of the house with bleeding injuries on face and neck. These evidence of P.Ws. 4, 5 and 6 gets corroboration from the medical evidence that deceased sustained injuries on his face and was lying dead on the spot. Three witnesses are consistent that accused was running away from the spot. 11. Resting here, the prosecution has proceeded to prove beyond reasonable doubt that on the next day morning a village meeting was held where accused had confessed. P.Ws. 4, 5 and 6 have stated that in the village meeting the accused confessed to have dragged the deceased to the backside of their house where the four unknown culprits killed him. The evidence of P.Ws. 4 and 5 gets corroboration from the independent witness P.W. 6 that in the meeting, on being asked by the villagers, the accused disclosed that at the instance of four unknown persons he showed them the house of deceased, called the deceased and took him to the backside of the house where the unknown persons killed him and went away. It is noteworthy that this independent witness P.W. 6 has admitted in his cross-examination that he caught hold the accused while he was running after the four unknown culprits in the direction in which the accused was running. This proves that the accused had confessed his part of guilt as attributed by P.Ws. 4 and 5. For this act of accused, sharing of common intention with unknown culprits U/s. 34 I.P.C. has assumed the bone of contention. 12. In the decision reported in 1976 AIR 1084, Maina Singh Vrs. State of Rajasthan their lordships of Hon'ble Apex Court have held as follows:- "It would thus appear that even if, in a given case, the charge discloses only the named persons as co-accused and the prosecution witnesses confine their testimony to them, even then it would be permissible to come to the conclusion that others named or unnamed, besides those mentioned in the charge or the evidence of the prosecution witnesses, acted conjointly with one of the charged accused if there was other evidence to lead to that conclusion, but not otherwise." In another decision reported in AIR 1977 SC 710 , Harshadsingh Pahelvansingh Vrs. The State of Gujarat it is held as follows:- "8. The State of Gujarat it is held as follows:- "8. xxxxxx The proposition is plain that even if some out of several accused are acquitted but the participating presence of a plurality of assailants is proved, the conjoint culpability for the crime is inescapable. Not that the story of more than one person having attacked the victim is false, but that the identity of the absolved accused is not firmly fixed as criminal participants. Therefore it follows that such of them, even if the number dwindled to one, as are shown by sure evidence to have knifed the deceased, deserve to be convicted for the principal offence read with the constructive provision." In the decision reported in 2010 8 SCC 407 , Virendra Singh Vrs. State of Madhya Pradesh it is stated that:- "The dominant feature of Section 34 is the element of intention and participation in action. This participation need not in all cases be by physical presence. Common intention implies acting in concert. The essence of section 34 IPC is a simultaneous consensus of the minds of the persons participating in criminal action to bring about a particular result. xxxxxx. In order that section 34 IPC may apply, it is not necessary that the prosecution must prove that the act was done by a particular or a specified person. In fact, the section is intended to cover a case where a number of persons act together and on the facts of the case it is not possible for the prosecution to prove as to which of the persons who acted together actually committed the crime. Little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with section 34." In the decision reported in 2020 78 OCR (SC) 563, Chhota Ahirwar Vrs. State of Madhya Pradesh it is held as follows:- "24. Section 34 is only attracted when a specific criminal act is done by several persons in furtherance of the common intention of all, in which case all the offenders are liable for that criminal act in the same manner as the principal offender as if the act were done by all the offenders. This Section does not whittle down the liability of the principal offender committing the principal act but additionally makes all other offenders liable. This Section does not whittle down the liability of the principal offender committing the principal act but additionally makes all other offenders liable. The essence of liability under Section 34 is simultaneous consensus of the minds of persons participating in the criminal act to bring about a particular result, which consensus can even be developed at the spot as held in Lallan Rai & Ors. vs. State of Bihar reported in (2003) 1 SCC 268 . There must be a common intention to commit the particular offence. To constitute common intention, it is absolutely necessary that the intention of each one of the accused should be known to the rest of the accused. 25. Mere participation in crime with others is not sufficient to attribute common intention. The question is whether, having regard to the facts and circumstances of this case, it can be held that the Prosecution established that there was a common intention between the accused appellant and the main accused Khilai to kill the complainant. In other words, the Prosecution is required to prove a premeditated intention of both the accused appellant and the main accused Khilai, to kill the complainant, of which both the accused appellant and the main accused Khilai were aware. Section 34 of the Indian Penal Code, is really intended to meet a case in which it is difficult to distinguish between the acts of individual members of a party and prove exactly what part was played by each of them. 26. To attract Section 34 of the Indian Penal Code, no overt act is needed on the part of the accused if they share common intention with others in respect of the ultimate criminal act, which may be done by any one of the accused sharing such intention [see Ashok Basho (2010) SCC 660 (669)]. To quote from the judgment of the Privy Council in the famous case of Barendra Kumar Ghosh reported in AIR 1925 Privy Council 1, "they also serve who stand and wait". 27. Common intention implies acting in concert. Existence of a prearranged plan has to be proved either from the conduct of the accused, or from circumstances or from any incriminating facts. It is not enough to have the same intention independently of each other." 13. 27. Common intention implies acting in concert. Existence of a prearranged plan has to be proved either from the conduct of the accused, or from circumstances or from any incriminating facts. It is not enough to have the same intention independently of each other." 13. Now descending to the facts, the accused is found to have come to the house of deceased in the dead of the night, called him to outside and dragged him to the backside of the house where four unknown culprits hacked him. The accused also joined with them and fled away from the spot. He is a co-villager. It is apparent that the accused had fusion of ideas with the unknown culprits who were armed with tangia and accused had premeditated intention. Common intention of accused is clearly proved as he acted in concert with four other persons. Common intention can only be inferred from the proved facts and circumstances. The conduct of accused is inferred when he fled away from the spot and was apprehended by the co-villager P.W. 6. The prosecution is found to have proved beyond reasonable doubt the common intention of accused with other four culprits of which final act was the murder of the deceased. Accordingly, prosecution has proved the case beyond reasonable doubt as to the sharing of common intention with the accused for section 34 I.P.C. for murder of deceased attracting offence U/s. 302 I.P.C. 14. With regard to defective charge, the Maina Singh (supra) reiterates that named or un-named persons can be acted conjointly with one of the charged accused and thereby charge would not be defective. In the case at hand, the perusal of charge reveals that accused was charged for the offence U/s. 302/34 I.P.C. and there is no such infirmity shown to have caused failure of justice warranting interference U/s. 464 Cr.P.C. 15. Much is canvassed with regards to absence of motive. It is held in the decision reported in 2012 3 SCC 196 , Lokesh Shivakumar Vrs. State of Karnataka as follows:- "8. As regards motive, it is well established that if the prosecution case is fully established by reliable ocular evidence coupled with medical evidence, the issue of motive loses practically all relevance. In this case, we find the ocular evidence led in support of the prosecution case wholly reliable and see no reason to discard it." 16. As regards motive, it is well established that if the prosecution case is fully established by reliable ocular evidence coupled with medical evidence, the issue of motive loses practically all relevance. In this case, we find the ocular evidence led in support of the prosecution case wholly reliable and see no reason to discard it." 16. Having made anatomical survey of evidence, we do not find any mis-appreciation of evidence by the learned trial court. Absence of motive is immaterial in view of eye witnesses P.Ws. 4 and 5. The version of eye witnesses gets corroboration from the extrajudicial confession and independent witness P.W. 6. The death of deceased is proved homicidal. The accused had participated with other four culprits for the murder of deceased. Section 34 I.P.C. does not lay down any general principle that identity of other persons must be established. It is sufficient if the accused conjointly with some other persons identified or unidentified, committed crime in furtherance of common intention of all. Under the above circumstances non recovery of weapon of offence is inconsequential like motive. 17. Resultantly, no infirmity is found in the conviction of the accused U/s. 302/34 I.P.C. The sentence of life imprisonment being minimum prescribed, the appeal warrants no interference. The conviction and sentence of the appellant is upheld. Accordingly the CRLA stands dismissed. Send back the L.C.Rs. forthwith. S.K. Mishra, J. I agree.