MR. JUSTICE D. DASH MR. JUSTICE v. NARASINGH Date of hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.412 of 2021 From the judgment 22.02.2008 passed by the learned Ad hoc Addl. Sessions Judge, Kamakhyanagar in Criminal Trial (Sessions) No.172 of 2006 /Criminal Trial (Sessions) No.41 of 2006. Daka @ Daktar Behera …. Appellant -versus- State of Orissa …. Respondent For Appellant : Mr. A. Tripathy, Advocate For Respondent : Mr. S.K. Nayak, AGA JCRLA No.44 of 2008 Santosh Behera …. Appellant -versus- State of Orissa …. Respondent For Appellant : Mr. R.B. Dash, Advocate For Respondent : Mr. S.K. Nayak, AGA CORAM: MR. JUSTICE D. DASH MR. JUSTICE V. NARASINGH Date of hearing : 05.04.2024 : Date of judgment : 20.08.2024 Page 1 of 12 V. Narasingh, J. The Appellants, by filing these Appeals, have called in question the judgment of conviction and order of sentence dated 22.2.2008 passed by the learned Ad hoc Addl. Sessions Judge, Kamakhyanagar in Criminal Trial (Sessions) No.172 of 2006/Criminal Trial (Sessions) No.41 of 2006 arising out of G.R. Case No.504 of 2005 corresponding to Parjang P.S. Case No.198 of 2005 on the file of learned S.D.J.M, Kamakhyanagar. 2. The Appellants (accused) have been convicted for committing the offence under Section 302/34 Indian Penal Code (for short, “the IPC”). They have been sentenced to undergo imprisonment for life under Section 302/34 IPC and pay a fine of Rs.5000/- in default to undergo rigorous imprisonment for a period of one year. In addition to it, accused Daktar Behera is sentenced to undergo imprisonment for one year for the offence under Section 323 IPC. Both the sentences were directed to run concurrently. 3. The case of the prosecution is that on 8.10.2005 at about noon, Ramakanta Behera (Informant P.W.4) along with his father Narottam Behera (deceased) were going to the house of one Trilochan Sahoo of village Gengutia to borrow money from him. Both P.W.4 and the deceased were walking on the ridge. Deceased Narottam Behera was going ahead being followed by his son P.W.4. While both of them were proceeding near Khainala Chaka, P.W.4 hearing “KHAS KHAS” sound from his back side looked back and he found accused Daktar Behera armed with sword, accused Santosh Behera and Juvenile in conflict with law each armed with lathi chasing them. P.W.4 shouted “PALA PALA” to alert his father and P.W.4 ran for his life. CRLA No.412 of 2021 & JCRLA No.44 of 2008 Page 2 of 12 4. When P.W.4 ran to a distance and looked back, he found accused Daktar Behera assaulting his father by sword and other accused persons assaulting his father by lathis. Receiving the blows deceased fell down on the ground and died. P.W.4 raised hulla and hearing hulla the accused persons ran away from the spot. P.W.4 came to the spot and found his father lying dead having various injuries on his body. Thereafter, P.W.4 came running to his house and narrated the incident to his fellow villager, mother and sister. P.W.4 went to Gramarakhi Bhagaban Naik (P.W.6) who intimated him to inform the matter at Dadaraghati outpost. When P.W. 4 was preparing to go to Parjang to intimate the incident of murder to his brother Basanta Behera and was near Hanuman Temple of village Raghunathpur, accused Daktar Behera assaulted his back by the blunt side of the sword. Receiving the blow, P.W.4 ran into the house of Rama Chandra Sahoo and took shelter in his house. 5. It is alleged that about three months prior to the incident, Smita Majhi, niece of P.W.4 found one wrist watch near well and brought the wrist watch with her. Smita Majhi handed over the wrist watch to the mother of P.W.4 who in turn pledged the same with Tusi Pradhan (P.W.5). Accused Daktar Behera claiming the wrist watch to be his son’s, asked P.W.5 to return the wrist watch to him. But P.W.5 refused to return the wrist watch for which accused Daktar Behera threatened Narottam Behera (deceased) with dire consequences. This is said to be the motive for the commission of the offence. CRLA No.412 of 2021 & JCRLA No.44 of 2008 Page 3 of 12 6. After receipt of the report from P.W.4-informant and son of the deceased, Parjang P.S. Case No.198 of 2005 was registered against the accused. After investigation, charge sheet was submitted under Sections 302/323/34 IPC. 7. To drive home the charge, the prosecution examined 8 witnesses. Their descriptions run thus: P.W.4- Ramakanta Behera- Informant and son of the deceased.
Legal Reasoning
P.W.1- Dr. Nilamani Sahu (Doctor). P.W.2-Harmohan Dhir- constable of Dadaraghati outpost. P.W.3- Sambhunath Behera- an eye witness to assault on P.W.4. P.W.5- Smt. Tusi Pradhan- witness to the seizure. P.W.6- Bhagaban Naik- the Gramarakhi P.W.7- Rama Chandra Sahu- a co-villager. P.W.8- Suryakanta Ray- the I.O. Besides the above, the prosecution has proved several documents which have been admitted in evidence and marked Exts.1 to 16 and M.Os., out of which Ext.1-post mortem report, Ext.2-injury report, Ext.5-inquest report, Ext.6, 10 & 11-seizure list, Ext.4/6-formal F.I.R. and Ext.16-C.E. report and M.O.I-Lungi, M.O.II-Gamucha are of significance. 8. The defence plea was one of complete denial and false implication. Defence has examined one witness and no evidence was adduced on behalf of the defence. 9. From the evidence of the doctor-P.W.1, who conducted the post mortem of the deceased-Narottam Behera, it is seen that he suffered the following external and internal injuries. “External Injuries. The body of the deceased was strong and stout. Rigor mortis was present over both hands and legs. CRLA No.412 of 2021 & JCRLA No.44 of 2008 Page 4 of 12 Maggots just appear at the injury at neck. Injuries -(a) Excision injury of left 3,4th and fifth finger completely, excision of left index finger which skin only attached, partially postieorly. (b) incised wound 5 cm x 4 cm x bone deep in right fore arm, venterally 6 cm below the right elbow joint. (c) incised wound 8 cm x 6 cm x bone deep at anterior aspect of right shoulder joint (d) incised wound 8 cm x 3 cm x bone deep in left chin and left mandible.(e) Excision of whole neck at the base of head completely and only some portion of skin is attached in right neck. (f) Incised wound 17 cm x 5 cm x bong deep, the left clavicle and ist. and second right left ribs are excised. Internal Injuries 2. Excision of left ist. And 2nd ribes and clavicle. (b) Incised injury of left upper lobe 5 cm x 3 cm x 3 cm in left lung. Stomach is in tact and empty.” Hence, it is established that the death of Narottam Behera was homicidal. 10. To ascertain the author of the assault on the deceased, as already noted, the prosecution examined 8 witnesses. 11. P.W.4-Ramakanta Behera is the informant and the son of the deceased who was following his father and in his testimony he has categorically stated that he found the appellant in CRLA No.412 of 2021 (Daka @ Daktar Behera) armed with a sword and the accused-appellant in JCRLA No.44 of 2008 (Santosh Behera) and one Juvenile in conflict with law coming behind him. 12. He has stated in his deposition that on seeing them he alerted his father and ran away from the spot and after running for some time when he looked back, he found Daka @ Daktar Behera (CRLA No.412 of 2021) assaulting his father by a sword and the appellant Santosh Behera (JCRLA No.44 of 2008) and the Juvenile CRLA No.412 of 2021 & JCRLA No.44 of 2008 Page 5 of 12 in conflict with law assaulting his father with lathis. As he raised an alarm, the accused persons fled away from the spot. It is in his deposition that when, he reached the spot where he found his father to be dead with his neck virtually severed and other injuries. It is stated that thereafter he went to his house and intimated his mother, his sister and others including P.W.3 (Sambhunath Behera) and also the Gramarakhi-P.W.6 (Bhagaban Naik). 13. He has further deposed that when he was preparing to go to Parjang in a scooter along with one Gopabandhu, the appellant Daka @ Daktar Behera came there with a sword and assaulted him by the blunt side of the same and it is stated that on being so assaulted, he ran for his life and took shelter in the house of one Rama Chandra Sahu-P.W.7. 14. The prosecution also relied on the statement of one Sambhunath Behera examined as P.W.3 as a witness to assault of appellant-Daktar Behera on P.W.4. 15. P.W.4-son of the deceased (informant) also narrated about the motive for commission of the offence in paragraph-4 of his deposition, which is extracted hereunder for reference. “4. About three months prior to the date of incident, my niece (bhaniji) Smita Majhi had gone to the well of Narahari behera our village to bring water. Smita Majhi found one wrist watch near the well and bringing the same from there gave it to my mother Jamuna Behera. My mother pledged the wrist watch with Tusi Padhan w/o. Nepali Padhan of our village for Rs.300/ (rupees three hundred). Coming to know about the same, accused Daktar behera asked for the wrist watch from Tusi Padhan claiming the writst watch to be his own. when Tusi Padhan refused to handover the watch to him, accused Daktar Behera was threatening my father to kill him. For this CRLA No.412 of 2021 & JCRLA No.44 of 2008 Page 6 of 12 reason, accused Daktar behera and other accused persons murdered my father as a measure of revenge.” 16. On institution of FIR, during the course of investigation, the I.O.-P.W.8 examined the Juvenile in conflict with law and later he was produced before the Juvenile Justice Board. On 18.01.2006 having come to know that the present Appellants have surrendered in the Court of learned S.D.J.M., Kamakhyanagar, remand of the accused persons to police custody for investigation being refused, he interrogated them in the jail premises. 17. While analyzing the evidence on record regarding the complicity of the present accused persons, the learned Trial Court took into account the evidence of the eyewitnesses and the son of the deceased-P.W.4 coupled with that of P.W.3 as noted above and analyzing the evidence of P.W.8 the I.O. came to the finding that the deceased succumbed to the injuries inflicted by the accused Daka @ Daktar Behera and on the basis of the evidence on record arrived at the finding that the appellant Santosh Behera has not assaulted the deceased-Narottam Behera by lathi as claimed, yet convicted him with the aid of Section 34 of IPC. In this context it is apt to note the evidence which came to the fore regarding complicity of the accused Santosh Behera. 17-A. P.W.4 the son of the deceased and an eyewitness denied the suggestion that he did not mention the presence of the appellant Santosh Behera and the Juvenile in conflict with law as “having assaulted his father the deceased-Narottam Behera”. 17-B. The attention of the I.O.-P.W.8 was specifically drawn to such statement in his cross-examination and the I.O. has stated thus:- CRLA No.412 of 2021 & JCRLA No.44 of 2008 Page 7 of 12 “It is a fact that P.W.4-Ramakanta Behera had not stated before me that he saw the accused Santosh Behera and Brajabandhu assaulted by lathi”. 17-C. In his deposition, P.W.3, who was a witness to the assault by Daka @ Daktar Behera on P.W.4 denied the suggestion of the defence that P.W.4 (Ramakanta Behera) has never mentioned the names of the appellant in JCRLA No.44 of 2008 (Santosh Behera) and the Juvenile in conflict with law) as the assailants which resulted in the death of his father Narottam Behera. 17-D. The evidence of the I.O.-P.W.8 in this regard runs thus:- “Paragraph-6:- During the course of investigation, I examined P.W.3 and recorded his statement under Section 161 of Cr.P.C. It is a fact that he had not stated before me that Ramakanta also told him the names of the accused Santosh Behera and Brajabandhu are the murderers of his father Narottam Behera.” 18. While analyzing the evidence on record regarding the complicity of the accused person Santosh Behera (JCRLA No.44 of 2008) the learned Trial Court lost sight of such material omission in the statement of the most interested witnesses i.e. P.W.4-son of the deceased (informant) in describing the role of the present appellant. 19. Being oblivious of the same, learned Trial Court relying on the Section 34 of the IPC came to the finding that the presence of the appellant Santosh Behera must have emboldened the co-accused Daka @ Daktar Behera to inflict the blows and referring to the surrounding circumstances jumped to the conclusion that the accused appellant in JCRLA No.44 of 2008 (Santosh Behera) shared the common intention and relying on the following judgments of the Apex Court (i) Imtiaz and Anr Vs. State Of CRLA No.412 of 2021 & JCRLA No.44 of 2008 Page 8 of 12 Uttar Pradesh reported in (2007) 15 SCC 299: (2007) 36 OCR 799 and (ii) Lala Ram Vs. State Of Rajasthan reported in (2007) 10 SCC 225: (2007) 37 OCR 828; held that even if no injury is caused by a particular accused, he can be held guilty of commission of the offence by resorting to Section 34 of the IPC. 19-A. At this stage, it is apposite to refer to the judgments relied by the Learned Trial Court. Imtiaz and Anr(Supra)- considering that all the accused in the said case came armed with spears and lathis and referring to the evidence, it was noted that the 12 accused surrounded the deceased as well as the injured and that the appellant had attacked the injured Mustakin (P.W.3), Apex Court held that Section 34 of IPC is clearly attracted and negated the contention of the Appellant Imtiaz that since he attacked injured Mustakin it cannot be said that he shared common intention with the other accused who dealt fatal blows which resulted in the death of Abdul Qayum. Lala Ram (Supra)- taking note of the dying declaration and the statement of the eyewitness P.W.4 the Apex Court upheld the conviction affirmed by the Rajasthan High Court under section 302/34 IPC. While discussing the import of Section 34 IPC, the Apex Court has referred to its earlier judgment in Chinta Pulla Reddy and Ors. Vs. State of Andhra Pradesh reported in 1993 Supp (3) SCC 134 and held that Section 34 IPC is applicable even if no injury has been caused by the particular accused himself. 20. In the case at hand P.W.4 who is the son of the informant, also an injured did not mention the presence of Appellant Santosh Behera (JCRLA No.44 of 2008) as noted. CRLA No.412 of 2021 & JCRLA No.44 of 2008 Page 9 of 12 P.W.3 who is a witness to assault by the co-accused Daka @ Daktar Behera (CRLA No.412 of 2021) on P.W.4 did not mention the same to the I.O. as noted in the preceding paragraph. 21. It is trite, that it is almost impossible to have direct evidence to prove the intention of a person so as to arrive at his culpability applying Section 34 of the IPC, which reads as under; “Section 34. Acts done by several persons in furtherance of common intention.—When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.” In this context reference can be respectfully made to the recent exposition of law relating to applicability of Section 34 IPC by the Apex Court in the case of Krishnamurthy alias Gunodu and Ors. Versus State of Karnataka reported in (2022) 7 SCC 521. The apex court held:- “incriminating facts must be incompatible with the innocence of the accused and incapable of explanation by any other reasonable hypothesis”. It is also further laid down that, “Where an accused is the main or final perpetrator, resort to Section 34 IPC is not necessary as the said perpetrator is himself individually liable for having caused the injury/offence. A person is liable for his own acts. Section 34 IPC or the principle of common intention is invoked to implicate and fasten joint liability on other co-participants.” (at page 537). 22. In the fact scenario of the case at hand, on an analysis of the evidence on record keeping in view of the categorical finding of the Learned Trial Court that the accused appellant Santosh Behera (JCRLA No.44 of 2008) has not committed any overt act and CRLA No.412 of 2021 & JCRLA No.44 of 2008 Page 10 of 12 considering the nature of evidence of the most interested witness P.W. 4 relating to the very presence as noted, this Court finds the appreciation of evidence on record qua the guilt of Santosh Behera basing on Section 34 of the IPC in the factual matrix of the case at hand to be perverse. 23. The Learned Trial Court has failed to appreciate the foundational facts which are necessary to implicate an accused with the aid of Section 34 IPC are missing so far as the accused Santosh Behera) (JCRLA No.44 of 2008) is concerned and in finding the Accused Santosh Behera guilty by application of Section 34 IPC the learned Trial Court committed the cardinal sin of relying on judgments of Apex Court bereft of the context. 24. Learned counsel for the appellant in CRLA No.412 of 2021 (Daka @ Daktar Behera) submits that since the learned Trial Court has disbelieved the version of P.W.4 the eyewitness relating to the assault on the deceased by Santosh Behera and the Juvenile in conflict with law, his version ought not to be believed so far as the complicity of appellant Daka @ Daktar Behera is concerned. He also argues with vehemence regarding no acceptable explanation being furnished for the delay in institution of the FIR and submits that in the facts of the present case, the same is of seminal significance. 25. On a close analysis of the evidence on record, this Court is not able to persuade itself to concur with the finding of guilt qua the accused Santosh Behera since there is no evidence on record which points to his guilt of sharing the common intention so as to be fastened with the liability along with principal accused by bringing into play Section 34 IPC. CRLA No.412 of 2021 & JCRLA No.44 of 2008 Page 11 of 12 26. This Court does not find any infirmity, in the analysis of the evidence on record by the learned Trial Court discussed hereinabove, regarding the finding of guilt of the accused-appellant Daka @ Daktar Behera under Section 302 of IPC and the consequential sentence imposed. 27. Thus, the CRLA No.412 of 2021 at the instance of Daka @ Daktar Behera being devoid of merit is dismissed. 28. For the reasoning as above, the conviction of Santosh Behera (JCRLA No.44 of 2008) is hereby set aside. The bail bonds stands cancelled and the sureties be discharged. (V. Narasingh) Judge D. Dash, J : I agree. (D. Dash) Judge Orissa High Court, Cuttack Dated the 20th August, 2024/Ayesha Signature Not Verified Digitally Signed Signed by: AYESHA ROUT Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 26-Sep-2024 18:13:27 CRLA No.412 of 2021 & JCRLA No.44 of 2008 Page 12 of 12