MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.243 of 2001 In the matter of an Appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 15th October, 2001 passed by the learned Additional Sessions Judge, Sonepur in Sessions Case No.57/41 of 1999. ---- …. Appellants 1. Jharbulu Padhan; 2. Chintamani Padhan (Dead & abated); 3. Pintu Padhan; 4. Bidesi Padhan; 5. Kapilas Padhan; 6. Purna Chandra Padhan; 7. Lalbihari Padhan (Dead & abated); 8. Surendra Padhan (Dead & abated) and 9. Kishori Padhan -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Mr.D.P. Dhal Senior Advocate For Respondent - Mr.S.K.Nayak Addl. Government Advocate Page 1 of 14 CRA No.243 of 2001 CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 01.10.2024 : Date of Judgment : 09.10.2024 D.Dash,J.The Appellants, by filing this Appeal, have assailed the judgment of conviction and order of sentence dated 15th October, 2001 passed by the learned Additional Sessions Judge, Sonepur in Sessions Case No.57/41 of 1999 arising out of G.R Case No.104 of 1998, corresponding to Biramaharajpur P.S. Case No.77 (10) of 1998 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Biramaharajpur. The Appellants (accused person) thereunder have been convicted for commission of offence under section 302 read with section 149 of the Indian Penal Code, 1860 (in short, ‘the IPC’). Accordingly, they have been sentenced to undergo imprisonment for life for commission of the said offence. However, accused Surendra and Jharbulu have been found guilty for commission of the offence under section 147/148/307 of the IPC, but no separate sentence has been passed for commission of the said offence. It is pertinent to state here that during pendency of this Appeal, Appellant No.2 (Chintamani), Appellant No.7 (Lalbihari) and Appellant No.8 (Surendra), having died, the Appeal as against them has abated and thus, the same is now CRA No.243 of 2001 Page 2 of 14 confined to the other Appellants, i.e., Appellant Nos.1, 3 to 6 and 9. 2. PROSECUTION CASE:- On 28.09.1998, around 8 a.m., a meeting was going on in the village temple mandap. The said meeting was called at the instance of Biranchi Padhan (P.W.7), who was then the Ward Member of the local Panchayat in. The purpose of the meeting was to discuss about the irrigation of the village lands by taking water from Bhunginal. The said meeting was attended by this accused (Achuta) & others including Niranjan Padhan. Many villagers around 40-50 in numbers were also present. It is stated that when the meeting was going on, dissention arose between Niranjan on one hand and this accused Achuta on the other. Therefore, the meeting could not further proceed and all dispersed. After that, when Niranjan came out of the Mandap, it is stated that this accused Achuta came with a Barchi and stabbed Niranjan on his abdomen. That accused Achuta, who had given blow on Niranjan for which Niranjan died at the spot, was tried separately in Sessions Case No.57/41(A) of 1999, assaulted Niranjan by barchi for which he died at the spot. It is further stated that thereafter accused Surendra dealt a tangia blow on the head of Harihar Padhan (P.W.7), who happens to be the son of CRA No.243 of 2001 Page 3 of 14 Niranjan (deceased) and then accused Jharbulu Padhan assaulted Harihar Padhan (P.W.7) by means of a sword on his arm. On 28.09.1998, around 11 p.m., Satyaban Padhan (P.W.6), who happens to be the son of Niranjan (deceased) lodged a written report with the Circle Inspector of Police,
Legal Reasoning
Biramaharajpur. Said written report being treated as FIR (Ext.2), case was registered and the said Circle Inspector (P.W.9) took up the investigation. 3. In course of the investigation, the I.O (P.W.10) examined the Informant (P.W.6) and other witnesses. He (P.W.10) visited the spot and prepared the spot map (Ext.7). Requisition was issued for medical examination of Harihar (P.W.7). On that day, the I.O (P.W.10) held inquest over the dead body of Niranjan in presence of the witnesses and prepared the report to that effect (Ext.4). Requisition was also issued for post mortem examination over the dead body of Niranjan. Incriminating articles were seized by the I.O (P.W.10) at the spot in presence of the witnesses under seizure list. After the post mortem examination, the wearing apparels of Niranjan (deceased) produced by the Police Constable were also seized. Incriminating articles were sent for chemical examination through Court. CRA No.243 of 2001 Page 4 of 14 Finally, on completion of the investigation, the I.O (P.W.10) submitted the Final Form placing these accused persons to face the trial under section 147/148/307/302/149/109 of the IPC. 4. Learned S.D.J.M., Biramaharajpur on receipt of the Final Form, took cognizance of the offences and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge for the said offences against these accused persons. 5. The prosecution, in the trial, has examined in total ten (10) witnesses. The Doctor, who had medically examined Harihar (P.W.7) is P.W.8 whereas the Doctor, who conducted the post mortem examination over the dead body of Niranjan, has come to the witness box as P.W.5. P.W.1 is the scribe of the FIR lodged by the Informant (P.W.3), who happens to be the son of the deceased. An independent witnesses to the occurrence has been examined as P.W.2. As already stated, the injured, who is the son of Niranjan (deceased), is P.W.7. One co-villager of the parties has been examined as P.W.4 and P.W.9 is the then O.I.C of Biramaharajpur Police Station, who had arrested the accused persons receiving the requisition from the Circle Inspector, who is the I.O and has been examined as P.W.10. CRA No.243 of 2001 Page 5 of 14 6. Besides leading the evidence by examining the above witnesses, the prosecution has proved several documents which have been admitted in the evidence and marked Ext. 1 to 11. Important of those are the F.I.R. (Ext.1), Inquest Report (Ext.4) and Postmortem Examination Report (Ext.5). The spot map and the Chemical Examiner’s report had been admitted in evidence and marked Ext.7 and Ext.11 respectively. 7. The accused persons have taken the plea of complete denial and false implication. They, however, have not tendered any evidence in support of such plea. 8. The Trial Court, after examination of the evidence and their evaluation, has held the nature of death of Niranjan to be homicidal. Next proceeding to examine the evidence let in by the prosecution, the Trial Court has arrived at a conclusion that these accused persons are is guilty of commission of offence under section 302 read with section 149 of the IPC and accordingly, they have been sentenced to undergo imprisonment for life.
Legal Reasoning
9. Mr.D.P. Dhal, learned Senior Counsel for the Appellants (accused persons), without disputing the nature of death of Niranjan, as has been held by the Trial Court to be homicidal, contended that these accused persons stood charged for commission of the offence under section 147 read with section 149 CRA No.243 of 2001 Page 6 of 14 of the IPC, section 148 read with section 149 of the IPC, which is wholly erroneous. He further submitted that the accused persons then also stood charged for commission of the offence under section 302 read with section 149 of the IPC and the Trial Court, without having recorded the conviction either under section 147 or 148 of the IPC and punishing them thereunder, has held these accused persons guilty for commission of the offence under section 302 read with section 149 of the IPC, which according to him, cannot stand to legal scrutiny. He submitted that there being no specific or positive allegation against any of these accused persons to have given the fatal blow upon Niranjan (deceased) when they have not been held guilty of committing the offence of rioting being the members of unlawful assembly; they in prosecution of the common object of such assembly, cannot be held guilty of committing the offence under section 302 with the aid of section 149 of the IPC as members of the unlawful assembly and in prosecution of the common object of such assembly for committing the murder of Niranjan by intentionally causing his death. He next submitted that even accepting the prosecution case, as has been presented by the injured witness (P.W.7), when the conviction of these accused persons under section 302 with the aid of section 149 of the IPC cannot sustain; they can only be held guilty for their individual acts as stated. He submitted that as per the version of P.W.7 the accused Lalbihari Page 7 of 14 CRA No.243 of 2001 (dead) handed over the thenga to accused Bidesi, Pintu, Chintamani (dead) and others (not named) and all of them assaulted Niranjan. He has also stated that accused Kishori had given that barchi to accused Surendra (dead) and that accused Surendra had given the barchi to accused Achuta, then inflicted the fatal blow upon Niranjan (deceased). He further contended that as regards the assault upon P.W.7, it is stated by P.W.7 that accused Kapilas handed over the thenga to accused Surendra and a sword to accused Jharbulu and therafter accused Surendra gave a thenga blow on his head. He further submitted that the evidence of P.W.7 is not receiving any support from the very FIR lodged by Satyaban (P.W.3) as to how P.W.7 was assaulted and who assaulted him, which pushes the evidence of P.W.7 into thick cloud of doubt when also the medical evidence does not provide the corroboration. He also submitted that the evidence of other witnesses to the occurrence, as projected by the prosecution, do not provide support to the evidence of P.W.7. In view of all these above, he contended that the judgment of conviction and order of sentence, impugned in this Appeal as against these Appellants (accused persons), cannot be sustained. 10. Mr.S.K.Nayak, learned Additional Government Advocate for the Respondent-State, while supporting the finding of guilt against these accused persons, as has been returned by the Trial CRA No.243 of 2001 Page 8 of 14 Court, contended that the Trial Court, on a threadbare discussion of the evidence on record, has held these accused person guilty for commission of the offence under section 302 with the aid of section 149 of the IPC. 11. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also extensively travelled through the depositions of the prosecution witnesses (P.Ws.1 to P.W.10) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.11. 12. These accused persons with others stood charged for commission of the offence under section 147 read with section 149 of the IPC; as to have committed rioting in prosecution of the common object being members of such unlawful assembly in assaulting the deceased. They have again been charged for being members of the unlawful assembly and in prosecution of the common object of such assembly, being armed with lethal weapons and with user of the said weapon which were likely to cause death have committed the offence under section 148 read with section 149 of the IPC. All have again been charged for commission of the offence under section 302 read with section 149 of the IPC that they being members of the unlawful assembly and in prosecution of the common object of such assembly committed the murder of Niranjan by intentionally causing his death. They CRA No.243 of 2001 Page 9 of 14 again have been charged for commission of the offence under section 307 read with section 149 of the IPC that they being members of the unlawful assembly in prosecution of the common object of such assembly, did commit the act with such intention or knowledge or under such circumstances that if that act by them had caused the death of P.W.7, they would be guilty of murder. A careful reading of the entire judgment would reveal that all these accused persons have been found to have committed the offence under section 302/149 of the IPC in saying that they had shared the common object by murdering the deceased. In that view of the matter, the Trial Court has held that there was no need to convict the accused persons separately under section 323/324/147/148/149 of the IPC. It is next stated that the prosecution has proved that these accused persons, having shared their common object while had killed Niranjan, they had also caused the injury to P.W.7 in the manner as has been alleged. But, then the Trial Court, upon discussion of the evidence on record, has not arrived at a finding that these accused persons and others, had formed an unlawful assembly and as such were the members of such unlawful assembly, which had the common object of intentionally causing the death of Niranjan and assaulting P.W.7. Therefore, without such a finding and when the State has not questioned the said judgment with regard to Page 10 of 14 CRA No.243 of 2001 absence of such finding and the non-recording of the conviction as against these accused persons for the said offences, we are of the considered view that the conviction of these accused persons for commission of the offence under section 302 of the IPC with the aid of section 149 of the IPC cannot stand to legal scrutiny and is opposed to the fundamental principles of criminal jurisprudence that a person, being not found to be a member of unlawful assembly, cannot be held guilty of committing any offence in prosecution of the common object of the said assembly with the aid of section 149 of the IPC. Therefore, when we say that the conviction of these accused persons under section 302 of the IPC read with section 149 of the IPC is not sustainable, we are now required to undertake the exercise of evaluation of the evidence to ascertain the complicity of these accused persons for their individual act. 13. Confining the examination of the evidence as to the role of these accused persons, we find P.W.2 to have stated that accused Surendra (dead) had handed over the barchi to his father (Achuta). He does not state anything about the role of any of these accused persons in the said incident. Although he states to have seen P.W.7 to have sustained bleeding injuries on his left forearm and head, but he does not state as to how he received those injuries and who dealt those blows upon P.W.7. This CRA No.243 of 2001 Page 11 of 14 witness, having clearly stated during investigation attention of which has been drawn to him and that seems to have been proved through the I.O. (P.W.10) that seeing the accused Achuta and deceased Niranjan rolling the ground, he left the spot out of fear and ran towards the cowshed of Sastri Mishra, it is seen that he has now given a go-bye to the same. Therefore, his evidence in so far as the role attributed to the accused persons as aforestated is highly unsafe to be relied upon. Next witness, i.e., P.W.3, who is the son of Niranjan and brother of P.W.7, is found to have stated that accused Kishori handed over the barchi to her son Surendra (dead), who then handed over the barchi to accused Achuta. Although he states to have seen P.W.7 sustaining bleeding injuries on his head and left forearm, he is silent as to how he received those and who are the authors of said injuries caused to P.W.7. P.W.4, who is one co-villager of the parties, is not stating anything about any role being played by any of these accused persons in the entire incident either in causing any injury upon Niranjan or Harihar (P.W.7). P.W.6, who is the younger brother of Niranjan (deceased), states that accused Kishori gave the barchi to accused Surendra (dead), who had then handed over the same to accused Achuta. He, for the first time, is stating said accused Surendra (dead) to have dealt tangia blow on the head of Harihar (P.W.7) and Page 12 of 14 CRA No.243 of 2001 thereafter accused Jharbulu to have given a sword blow upon P.W.7 in causing injuries on his head and right forearm. The evidence of P.W.6 does not find any support from the evidence of other witnesses, as already discussed. When we now come to the evidence of the injured himself (P.W.7), we find him to have stated that accused Kishori handed over the barchi to accused Surendra (dead), who then handed over the same to accused Achuta, who stabbed by means of that on the belly of Niranjan. His evidence discloses certain new facts that when his father was being assaulted by accused Achuta, he saw accused Lalbihari (dead) to have given thengas to accused Bidesi, Pintu, Chintamani (dead) and others, who are stated to have assaulted his father Niranjan. This is not the version of any other witness. He further states that when his father was being assaulted, he was standing nearby and then accused Kapilas handed over a tangia to accused Surendra (dead) and a sword to accused Jharbulu whereafter accused Surendra (dead) only assaulted by that taniga on his head. He has further stated that when he tried to escape, accused Jharbulu dealt a sword blow on his left forearm. The above evidence of P.W.7 does not receive support from any other witnesses in that way and, therefore, with the available contradiction of P.W.7 as regards the commencement of the incident and happenings therein, we do not feel it safe to hold Page 13 of 14 CRA No.243 of 2001 that the prosecution has proved the individual role of any of these accused persons in committing any offence beyond reasonable doubt. 14. For all the aforesaid, we find that the finding of guilt against these accused persons, as has been returned by the Trial Court, is liable to be set aside. Accordingly, it is held that the judgment of conviction and order of sentence, which are impugned in this Appeal, cannot be sustained. 15. Accordingly, we allow this Appeal and set aside the judgment of conviction and order of sentence dated 15th October, 2001 passed by the learned Additional Sessions Judge, Sonepur in Sessions Case No.57/41 of 1999. Since all the Appellants (accused persons) are on bail, the bail bonds executed by them shall stand cancelled. (D. Dash) Judge I agree. (V. Narasingh) Judge Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 09-Oct-2024 14:05:08 CRA No.243 of 2001 Page 14 of 14