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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.