Full Judgment Text
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PETITIONER:
STATE OF ORISSA
Vs.
RESPONDENT:
ARJUN DAS AGRAWAL ANR.
DATE OF JUDGMENT: 13/08/1999
BENCH:
G.T.Nanavati, S.N.Phukan
JUDGMENT:
PHUKAN, J.
Sixteen persons were booked for trial under Sections
302/149, 302/34, 341/149, 449, 451/34, 427/34 and 323 Indian
Penal Code for causing death of deceased Bhagirathi Panda.
The Sessions Judge, Koraput in Sessions Case No. 134/85 by
judgment dated 2nd April, 1986 after appreciation of the
evidence of 16 witnesses for prosecution and seven witnesses
of defence came to the finding that the deceased met with
homicidal death and accordingly convicted accused Dillip
Kumar Chand under Section 302 I.P.C., accused Kishanlal
Kamini, Manmohan Das alias Manu Bangali, Prafulla Kumar
Pradhan and Arjun Das Agrawala under Section 302/149 I.P.C.
The trial court also found accused Radheshyam Agrawala,
Uttam Kumar Behra, Devi Misra, Babuli alias Sudhansu Sekhar
Das guilty and convicted them under Section 451 and 427
I.P.C. Other accused persons were found not guilty and
acquitted them.
Accused Dallip Kumar Chand was sentenced to death.
Accused Kishanlal Kamini, Prafulla Kumar Pradhan, Manmohan
Das alias Manu Bangali and Arjun Das were sentenced to under
go imprisonment for life. The trial court, however,
sentenced Radheshyam Agrawala, Uttam Kumar Behera, Devi
Misra, Babuli alias Sudhansu Sekhar Das to rigorous
imprisonment for one year.
The Division Bench of the High Court in death
reference No. 1 of 1986 and Criminal Appeal Nos. 72 to 74,
81,82 and 88 of 1986 by judgment dated 27.1.1987 allowed the
appeals of Arjundas Agarwal and Manmohan Das and were
acquitted. The death reference and appeal of Dallip Kumar
Chand were partly allowed and he was convicted under Section
302/34 IPC and his death sentence was converted to rigorous
imprisonment for life. The appeals filed by Prafull Kumar
PradhanKishnlal Kamani, Radheshyam Agarwal, Devi Prasad
Misra, Sudhansu Sekhar Das alias Babuli and Utam Kumar
Behera were dismissed.
The State of Orissa has filed the present appeal in
respect of acquittal of Manmohan Das and Arjun Das Agarwal.
The occurrence took place in the night of 17th July,
1982 at about 10.00 p.m. The deceased was running a hotel
at his residence at village Narala road and at the time of
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occurrence he closed its business and was taking the
accounts from the hotel boys. At about 10.00 p.m. in the
night of occurrence some persons knocked at the door of
hotel and asked for meals but the deceased told them that
Chapati would not be available and they could be served with
rice. As soon as hotel boy opened the door accused Debi
Misra, Babuli alias Sudhansu Das, Uttam Behera and
Radheshyam Agrawala went inside the hotel and immediately
picked up quarrels with the deceased. Radhamani Panda w/o
deceased rushed in and tried to arrange for the food for the
above persons. She took her husband into the adjoining
room. Though food was served in two plates, the above
persons broke the chairs, tables, plates and tore out the
electric wirings as at that time there was no supply of
electricity. At that time wife of the deceased heard the
cry of pain from the adjacent room and she rushed inside the
room. She saw that her husband had been stabbed on his
belly. Accused Dillip Chand was holding a knife and along
with Kishanlal Kamini was trying to drag the deceased from
out of the room. Accused Prafulla Kumar Pradhan also was
man-handling the deceased when she tried to rescue her
husband, accused Manmohan Das pushed her back. All the four
accused dragged the deceased out of the room to the verandha
and the accused Dillip Chand gave 3-4 blows. Accused Arjun
Das Agrawal standing on the road was instigating the
assailants to finish the victim soon. Other accused persons
namely Rambilash Agrawala, Motilal Agrawala, Madan Lal
Agrawala, Santosh Kumar Kamani, Santosh Mishra, Puspak
Biswal and Hajarilal Lal Agrawala surrounded the deceased
while he was being assaulted by accused Dillip Chand and his
associates. The wife of the deceased and other persons
rescued the deceased and carried him back into the house.
Radhamani carried her deceased husband to Narla
Hospital and she also sent information to the Narla Police
Station. The Asstt. Sub-Inspector of the said Police
Station reached at the hospital and took the First
Information Report. The Doctor attending the injured
advised that he should be immediately removed to the
hospital at Bhawanipatna and in the same truck he was
carried to Bhawanipatna Hospital and on reaching the
hospital he was declared dead.
In this appeal filed by the State we have to examine
whether the orders of acquittal passed by the Division Bench
of the High Court in respect of two accused respondents
namely Manmohan Das @ Manu Bangali and Arjun Das Agarwal
were based on the proper appreciation of evidence on record
or not? Both the above accused-respondents along with
others were charged under Sections 302/149 and 302/34 IPC.
The case of the prosecution rests mainly on the
evidence of Radhamani Panda -PW1 wife of the deceased,
Kailash Chandra Panda-PW2 who was having a tea stall on the
verandah of the hotel of the deceased, Baikuntha Panda-PW3
brother of PW2 who had got betel nut shop on the verandah of
the hotel of the deceased and Bhaskar Panda-PW4 who was the
cook in the hotel of the deceased.
Both the courts below believed the above eye
witnesses. In fact the High Court has recorded after
carefully going through the evidence of the above eye
witnesses that they were natural, competent, trustworthy and
reliable witnesses. According to the High Court, their
evidence finds substantial corroboration from the medical
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evidence and, therefore, the trial court rightly placed
reliance on their evidence.
We have also been taken through the evidence of the
above witnesses by the learned counsel for the appellant,
Mr. Mehta and we entirely agree with the findings of the
trial court as well as the High Court. Though, Mr.
T.N.Singh, amicus curie appearing for accused-respondent
Manmohan Das @ Manu Bangali has drawn our attention to some
of the contradictions, we are of the opinion, as recorded by
the High Court that these were minor in nature and cannot
demolish the case of the prosecution.
Radhamani Panda - PW1 wife of the deceased was the
informant. She had supported completely the prosecution
case. According to her the occurrence took place on 17th
July, 1982 at about 10.00 p.m when the hotel was closed and
her deceased husband was taking account from the employee.
Two accused persons namely Radha and Babuli asked for meal
by shouting and her deceased husband replied that only rice
would be available. At the request of the above accused
persons the door of the hotel was opened and four accused
persons entered inside and two of them caught hold the beard
of her deceased husband and thereafter they broke chairs,
tables and pulled down the electric wires. It had been
mentioned that at that time there was no supply of
electricity and lamps were burning. PW1 requested the
accused persons to cool down and took her husband to the
adjacent room. She came out and asked the hotel cook namely
Bhaskar Panda ( P.W.4) to serve meals, while he was doing so
in China plates, two other accused persons entered and all
the accused persons crashed the plates. At the same time
she heard her husband shouting that he was being killed and,
therefore, she rushed inside the room and saw a knife injury
on the left side of the belly of her husband. She (PW-1)
saw accused Kishan was holding the beard of her husband and
accused Dillip Chand was dragging. She had further stated
that the assailants had found their way inside through
another door. She had made a specific statement that while
she was going to intervene accused - respondent Manmohan Das
@ Manu Bangali pushed her back and she fell down. According
to her accused- Arjun Agarwal was instigating to beat her
husband. She along with others rescued her husband and
brought him inside the hotel and all the accused persons
dispersed. She took her husband in a truck along with
others to Narla hospital and on way she dropped Baikunth
Panda - PW3 to inform the police. On the advice of the
local doctor after preliminary treatment deceased was
removed to Bhawanipatna hospital in the same truck where he
was declared dead. While at Narla hospital a Police Officer
went there before whom this witness narrated the incident
which was treated as the FIR. She made categorical
statement that she was not mentally fit at that time due to
the condition of her husband.
PW2 - Kailash Chandra Panda had a betel nut shop by
the side of the hotel of the deceased. He had stated that
he started running a tea stall on the verandah of the hotel
of the deceased and gave the betel nut shop to his brother
Baikunth Panda - PW3. He had supported the evidence of PW1
in all the above points. He categorically stated that as
there was no electric supply, a petromax light was burning
in the hotel of the deceased and lamps at his tea stall. He
went inside the hotel and saw accused Dillip Chand gave a
knife blow on the left side of belly of the deceased.
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According to him accused Kishan Kamani caught hold the beard
of the deceased and accused respondent Manmohan Das @ Manu
Bangali and Prafulla caught hold of tuft of beard of the
deceased. He supported the evidence of PW1 inasmuch as
according to this witness when PW1 came to the room accused
respondent Manmohan Das @ Manu Bangali pushed her back,
thereafter the assailants dragged the deceased to the
verandah where 3-4 more blows by knife were given by accused
Dillip Chand . Regarding accused respondent Arjun Agarwala
he had stated that this accused came out from the house and
instigated the accused persons to kill the deceased. He
along with PW1 and others rescued the deceased and carried
him back.
Baikuntha Panda - PW3 brother of PW2 had deposed that
at that time he was at the betel nut shop in front of hotel
of the deceased. This witness identified accused respondent
Manmohan Das @ Manu Bangali and further stated that he knew
Dillip Chand, Arjuna Agarwala, Prafulla and Kishan Kamani.
This witness did not see the entire incident as he went to
attend the call of nature on the back side of the hotel .
When he heard the cries of the deceased he went inside the
room .Though this witness had not specifically stated the
part played by accused-respondent Manmohan Das @ Manu
Bangali but he categorically stated the presence of this
accused-respondent at the place of occurrence. Regarding
accused-respondent Arjuna Agarwala this witness had also
stated that the accused directed the others to finish
deceased as soon as possible. He also along with others
accompanied PW1 in the truck.
Bhaskar Panda - P.W. 4 was working as cook in the
hotel of the deceased and he had supported fully the
evidence of other witnesses. It is true that he had not
stated the part played by accused-respondent Manmohan @ Manu
Bangali but regarding accused-respondent Arjuna Agarwala he
had stated that this accused asked others to finish
him(deceased) soon.
From the evidences of the above witnesses the
prosecution has been able to prove that accused-respondent
Manmohan @ Manu Bangali was present at the place of
occurrence and he took active part by holding the beard of
the deceased and also resisting PW1 wife of the deceased to
go to rescue her husband. Regarding accused-respondent
Arjuna Agarwala only evidence is that after coming out from
his house he instigated the accused persons to kill the
deceased but there is no evidence on record to show that as
a result of instigation more blows were given by accused
Dillip Chand or any other action was taken by any other
accused persons.
Regarding acquittal of accused-respondent Manmohan Das
@ Manu Bangali the High Court had not recorded any
acceptable reason. Regarding accused-respondent Arjunadas
Agarwal the High Court specifically recorded that there was
no evidence that this accused entered into the place of
occurrence. The High Court noted that the allegation was
that he was standing out side and incited other accused
persons to finish the deceased. Though, according to the
prosecution in pursuance of the aforesaid act the deceased
was assaulted by lathi but it was not corroborated by the
medical evidence, therefore, the High Court held that
conviction of accused-respondent Arjunadas Agarwal under
Section 302/149 IPC is unsustainable.
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Though, sessions Judge convicted Dallip Chand under
Section 302 IPC and accused Kishanlal Kamani, Manmohan Das @
Manu Bangali, Prafull Kumar Pradhan and Arjun Das Agrawala
under Section 302/149 IPC the division bench of the High
Court convicted Dallip Chand under Section 302/34 IPC and
appeals of Prafulla Kumar Pardhan, Kishanlal Kamani,
Radheshyam Agarwal, Devi Prasad Misra, Sudhansu Sekhar Das @
Babuli and Uttam Kumar Behera were dismissed.
As stated earlier the trial court framed charges
against accused persons under Section 302/34 IPC and under
Section 302/149 IPC. A question may arise as to whether if
an accused is charged under Section 302/149 IPC can he be
convicted under ection 302/34 IPC.
This Court in Mahabir Gope Vs. State of Bihar 1963(3)
SCR 331 considered the question of conviction under Section
302/34 IPC and 302/149 IPC. In that case appellant and 11
other persons were charged under Sections 147 and 302/34
IPC. According to the prosecution the appellant and other
accused persons formed themselves into a unlawful assembly
at Bhagalpur Special Central Jail and in prosecution of the
common object of said assembly, the Chief Head Warder and
the night Watchmen, were assaulted. They were also charged
under Section 302/34 IPC for assaulting the Chief Head
Warder in furtherance of the common object with a view to
cause his death. While upholding the conviction under
Section 302/34 IPC this Court held that the position would
not be any different even if the appellant had been
convicted under Section 302/149 IPC as Section 149 IPC
provides that if an offence is committed by any member of
unlawful assembly in prosecution of the common object of
that assembly, or such as the members of that assembly knew
to be likely to be committed in prosecution of that object,
every person who, at the time of committing of that offence,
is a member of the same assembly, is guilty of that offence.
In Jagir Singh Vs. State of Punjab 1967(3) SCR 256
this Court also considered the same question. This Court
referred to an earlier decision in Bharwad Mepa Dana and
another Vs. State of Bombay 196o (2) SCR 172 in which 14
persons were charged with offences under Section 302 read
with Sections 149 and 34 IPC. Out of 14 accused persons 7
were acquitted. On appeal the High Court acquitted one of
the five convicted persons. This Court upheld the
conviction and held that there was no difficulty in the
application of Section 34 IPC as the number of the convicted
persons was four and there was a clear finding that they
shared the common intention with other accused persons whose
identity was not established. The above ratio laid down in
Bharwad Mepa Dana and another (Supra) was approved in this
case namely Jagir Singh(Supra).
The trial court convicted accused Dillip Kumar Chand
under Section 302 IPC and accused Kishanlal Kamini, Manmohan
Das @ Manu Bengali, Prafulla Kumar Pradhan and Arjun Das
Agrawala under Section 302/149 IPC. The High Court
convicted accused Dillip Kumar Chand under Section 302/34
IPC and allowed the appeal of accused persons Manmohan Das @
Manu Bengali and Arjun Das Agrawala. In view of the ratio
laid down by this court in Mahabir Gope (Supra) and Jagir
Singh (Supra), this Court in this appeal accused Manmohan
Das @ Manu Bengali and Arjun Das Agrawala can be convicted
under Section 302/34 IPC.
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It is a settled position of law that Section 34 IPC
does not create a distinct offence and it is the
participation of the accused that the intention of
committing crime is established and Section 34 IPC is
attracted. To rope in a person with the aid of Section 34
IPC, prosecution has to prove that the criminal act was done
by actual participation of more than one person and that the
said act was done in furtherance of common intention of all
engaged at a prior concert.
Coming to the facts of this present case we find from
the evidence on record as extracted above that accused
Manmohan Das @ Manu Bangali went to the house of the
deceased along with other accused persons where accused
Dallip Chand gave knife blows to the deceased. We also find
that the accused- respondent Manmohan Das also prevented
Radhamnai Panda-PW1 wife of the deceased to rescue her
husband as she was pushed by accused - respondent Manmohan
Das and she fell down. From the evidence of Kailash Chandra
Panda-PW2 we find that the accused -respondent Manmohan Das
@ Manu Bangali caught hold of tuft of beard of the deceased.
The above evidence on record is sufficient for us to
come to the finding that in the criminal act namely giving
fatal blows to the deceased accused-respondent Manmohan Das
@ Manu Bangali actively participated in the said criminal
act in furtherance of the common object. namely to cause
death of the deceased . The Accused - respondent Manmohan
Das @ Manu Bangali not only went with others to the place of
occurrence but he also took active part while accused Dallip
Chand gave the blows to the deceased. For the above reasons
we are of opinion that the High Court erred in allowing the
appeal of accused Manmohan Das @ Manu Bangali. We,
therefore, convict accused Manmohan Das @ Manu Bangali under
Section 302/34 IPC. Regarding accused - respondent Arjuna
Das Agarwal we find from the evidence on record that this
accused neither went inside the house of the deceased nor
took any part in the commission of the murder. He only
instigated by shouting the other accused persons. There is
nothing in evidence to show that due to his instigation more
blows were given by the accused persons. Therefore, no
inference can be drawn that this accused-respondent had
common intention of cuasing death of the deceased or that he
actually participated in the criminal act. Therefore, High
Court rightly acquitted this accused. For the reasons
stated above the appeal filed by the State is partly
allowed. The appeal against the order of acquittal of Arjun
Das Agarwal is dismissed and appeal against the order of
acquittal of Manmohan Das @ Manu Bangali is allowed and the
said order is set aside. He is convicted under Section
302/34 IPC and sentenced to undergo rigorous imprisonment
for life. He shall be taken in custody forthwith to undergo
the remaining part of the sentence.