Orissa High Court
Chandra Guru And Another vs State Of Odisha on 28 November, 2023
Author: Chittaranjan Dash
Bench: S.K. Sahoo, Chittaranjan Dash
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA No. 74 of 2008
Arising out of the judgment and order of conviction dated
07.08.2008 passed by the learned Addl. Sessions Judge, Boudh in
S.T. Case No.43 of 2007 corresponding to G.R. Case No.68 of 2007
arising out of Baunsuni P.S. Case No.22 of 2007.
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Chandra Guru and another ....... Appellants
-Versus-
State of Odisha ....... Respondent
For Appellant : - Ms. Mina Kumari Das,
Advocate
For Respondent : - Mr. Sonak Mishra,
Addl. Standing Counsel
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PRESENT:
HONOURABLE SHRI JUSTICE S.K. SAHOO
AND
HONOURABLE SHRI JUSTICE CHITTARANJAN DASH
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Date of Judgment : 28.11.2023
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Chittaranjan Dash, J.
1. The Appellants having faced trial in the offence under Section 302/34 of the Indian Penal Code (herein after in short called "IPC") JCRLA No. 74 of 2008 Page 1 of 30 found guilty and convicted there under and sentenced to undergo Imprisonment for life and to pay fine of Rs.10,000/- (Rupees Ten Thousand), in default, to undergo R.I. for two years more.
2. The case of the prosecution as reveals from the F.I.R. and the case record is that, on 04.03.2007 one Manu Naik (P.W.1), son of Madan Naik of village Baidyanathpur under Baunsuni P.S. in the district of Boudh lodged a written report alleging that in the afternoon on that very day while he was returning to his home after taking bath in the village pond, his sister-in-law namely Rajani Naik (P.W.2), wife of Nila Naik (the deceased) informed that at about 4:00 PM in the afternoon, while his brother (deceased) being the son of his maternal uncle had been to the house of the Appellants Chandra Guru and Jarasingh Guru asking for return of the sum of Rs.500/- (Rupees Five Hundred) borrowed by them, they got furious and entered into quarrel with the deceased. Thereafter, while the deceased was returning to his home, on the paddy field of Raju Panda, Appellant No.1 - Chandra Guru dealt a blow to his belly by means of a stick, whereupon the deceased fell down on the ground. Seeing this, Appellant No.2 - Jarasingh Guru dealt blows to the deceased by means of 'tangia' (axe) and severed his neck from his body, for which the deceased died at the spot. Seeing the incident, P.W.2 got frightened and raised outcry that the deceased has been hacked to death and she ran towards the JCRLA No. 74 of 2008 Page 2 of 30 house being fear of life. On being informed so, P.W.1 proceeded to the spot and saw the deceased lying dead and his neck found severed from the body by means of a sharp weapon. The villagers, namely Balabhadra Naik (P.W.7), Srikanta Naik (P.W.3) and Ranka Behera also witnessed the incident. As the report revealed a cognizable offence, the O.I.C. Baunsuni P.S. registered the same vide Baunsuni P.S. Case No.22 of 2007 and took up investigation.
3. In course of the investigation, the I.O. examined the complainant; deputed a Constable to guard the spot; issued Command Certificate to that effect; sent requisition to the photographer to take the photograph of the dead body along with the spot; and examined other witnesses. On 05.03.2007 he went to the spot; prepared the Spot Map under Ext.14; seized the sample earth and blood stain earth and one split wooden lathi stained with blood in presence of the witnesses under Ext.15; held inquest over the dead body of the deceased with the severed head, without head and the severed head jointly with the body under Exts. 2, 3 and 4. The I.O then dispatched the severed body and head to the District Headquarters Hospital Boudh for post mortem examination and issued Dead Body Challan to that effect under Ext.6; arrested the accused persons Jarasingh Guru and Chandra Guru. While in police custody, as accused Jarasingh Guru volunteered to confess the guilt and disclosed the place of JCRLA No. 74 of 2008 Page 3 of 30 concealment of the weapon of offence at Dungi Bandha (tank) in presence of witnesses, he reduced the statement of Jarasingh in writing in presence of the witnesses under Ext.15, as required under Section 27 of the Evidence Act. On being led to the police and the witnesses, the accused brought out the axe from the under-water of Dungi Bandha, which he seized in presence of witnesses under Ext.17; kept the axe (M.O.-I) with paper seal; seized the lathi and black check colour lungi suspected to have been stained with blood on production by the accused Chandra, who expressed to have worn at the time of committing murder of the deceased so also one jacket of accused Chandra suspected to have stained with blood under Ext.8; seized one chocolate colour check lungi and one green colour full-neck banian under Ext.9 suspected to have stained with blood worn by accused Jarasingh at the time of commission of offence; sent the requisition for medical examination of accused Chandra Guru who sustained injury on his person as well as for collection of his nail clipping and scrapping of the accused Chandra under Ext.18; seized the said nail clipping and scrapping under Ext.19; seized the wearing apparels of the deceased under Ext.7; re-examined the complainant; forwarded the accused persons to the court; received the Post-Mortem Report and made query to the doctor relating to the probable cause of death by the weapon of offence. On 15.05.2007 the I.O. JCRLA No. 74 of 2008 Page 4 of 30 dispatched the seized incriminating articles to the SFSL, Bhubaneswar through the SDJM, Boudh and obtained the Chemical Examination Report under Ext.21; seized the photograph under Ext.22; arrested the accused Maniratha on 16.06.2007 and forwarded him to the court on 29.06.2007; received the Injury Report in respect of Chandra Guru under Ext.23 and on completion of the investigation, submitted the Charge-Sheet.
4. The case of the defence is one of complete denial and false implication. The further case of the accused Chandra Guru is that on the day of Falguna Purnima, the deceased in an inebriated condition came to their house and shouted at them. Since the deceased happened to be their elder brother, they did not react to his activities. On the next day, on the occasion of Holi festival, the deceased once again came to their house being drunk and demanded Rs.500/- (Rupees five hundred). As the Appellants refused, the deceased dealt a blow to Chandra Guru by means of the butt of the gun held by him, with which Chandra sustained bleeding injury on his head and fell down being senseless. After he regained his senses, he went to the police station to lodge F.I.R. As far as the co-accused Jarasingh Guru is concerned, he feigned his ignorance except to the effect that on the day of Falguna Purnima, on the festival of Holi the deceased had been to their house and JCRLA No. 74 of 2008 Page 5 of 30 entered into quarrel. He, however, could not say what happened thereafter, since he fell asleep in his house.
5. To prove the culpability of the accused persons, the prosecution examined 10 witnesses in all. The prosecution also proved 25 documents under Exts.1 to 25 and 6 Material Objects under M.O.-I to M.O.-VI. The defence on the other hand examined 3 witnesses, but did not adduce any documentary evidence.
6. P.W.1 is the Informant who deposed on oath akin to the narration made in the F.I.R. to the effect that on 04.03.2007, on the day of Holi festival at about 4:00 PM when he returned from Gadtiamunda tank after taking bath, his sister-in-law Rajani Naik intimated him that when his brother Nila Naik had been to the house of the accused Chandra Guru and demanded Rs.500/- which he had paid on credit, there was exchange of hot words between Chandra Guru and his brother Nila Naik and thereafter all the three accused persons who are the brothers, namely Chandra Guru, Jarasingh Guru, the full blooded brother and Maniratha who is the cousin father's brother chased him, accused Chandra dealt a lathi blow on the belly of Nila Naik (deceased), whereupon Nila Naik fell down, Maniratha handed over a tangia (axe) to Jarasingh who repeatedly dealt blows by means of that tangia on the neck of Nila Naik, beheading him and thereafter he went to the spot and found JCRLA No. 74 of 2008 Page 6 of 30 the head of his brother Nila was severed from his body and lying drenched with blood. He lodged the report with the police under Ext.1.
7. After lodging of the report, the police visited the spot. Since it was already night, the police could not hold inquest over the dead body of the deceased and therefore deputed the Constable to guard the site. On the next day at about 8:30 AM the police again visited the spot, held inquest over the severed portion of the body and head separately and jointly and took snaps of photographs. He also stated to be a witness to the inquest under Exts. 2, 3 & 4 and proved his signature under Ext.2/1, 3/1 & 4/1 respectively. In course of the cross-examination, he stated that Ananda and Bhetikhai are his maternal uncle. Chandra and Jarasingh are sons of Ananda and Maniratha is the son of Bhetikhai. He further admitted that Maniratha is youngest of the four sons of Bhetikhai and had married about 4 to 5 years prior to the incident, and after marriage Maniratha is living at Sahajpal in his in-law's place as illatum-son. He also stated that they are six brothers including the deceased and Nila Naik had two wives. Rajani is the second wife of Nila. He also replied that his deceased brother Nila was in defence service for about 20 to 24 years and had returned to the village about 8 to 10 years back and was staying in village Baidyanathpur. He denied the suggestion of the defence to the effect that his JCRLA No. 74 of 2008 Page 7 of 30 brother Nila has got two guns, one is having license and another is without license. He admitted that prior to the incident there was no hostile attitude between his deceased brother Nila and the Appellants. He too admitted that as per their customary practice they used to take country-made liquor. According to the witnesses, the place of incident is about 100 meters from his house and the incident was narrated to him by his sister-in-law in their house. According to the witness, while he visited the spot, 10 to 12 persons were present there including Ranka Behera, Bhima Behera and Balabhadra Behera. As per the narration of his sister-in-law, he scribed the report and admitted that he did not mention the name of Maniratha either in the F.I.R. or in his statement before the police to the effect that Maniratha was also present at the time of incident.
8. P.W.2 - Rajani Naik is the wife of the deceased Nila. In her evidence on oath she stated that the deceased is her husband. About 10 months back on the day of Holi festival, after taking his lunch, her husband at about 4:30 PM went to the house of Chandra to demand the sum of Rs.500/- (Rupees five hundred) which her husband had given on credit to the Appellants. After some time, on hearing the hot exchange of words, when she went there she saw all the Appellants along with Maniratha were chasing her husband and then on the field of Raju Panda, Chandra dealt a blow with lathi JCRLA No. 74 of 2008 Page 8 of 30 on the belly of her husband whereupon Maniratha handed over one axe to the Appellant Jarasingh who dealt repeated blows with the axe on the neck of her husband severing his head from body. All through the incident, she was crying for help. On hearing her cry, Bhadra, Srikanta, Ranka, Bhima and Mana came there. Seeing them, all the accused persons left the lathi at the spot and fled away with axe towards Baunsuni. The witness also stated that she can identify the axe with which the accused persons dealt blow to her husband and also can identify the same as M.O.-I.
9. During her cross-examination, she denied any ill-feeling was between her husband and the accused persons. On the contrary, she stated that the accused persons were under intoxication, for which, on demand of money by her husband, the incident took place and she was present at a little distance from the site of the incident, which was about 8 to 10 feet. She also stated that, on hearing the outcry raised by her husband, she along with her son went there. She denied the suggestion of the defence to the effect that her husband being in the state of intoxication, went to the house of Chandra and demanded Rs.500/- (Rupees Five Hundred) as Holi expenses, and when the accused refused, her husband dealt blows with butt of gun and that Chandra sustained bleeding injury and fell down senseless and then on the arrival of Jarasingh there were quarrel between her husband and Jarasingh, and JCRLA No. 74 of 2008 Page 9 of 30 Jarasingh threatened to kill him and during the said tussle her husband sustained injuries and succumbed to death.
10. P.W.3 - Srikanta Naik, a co-villager, in his evidence on oath stated that the deceased Nila Naik is his father's elder brother. About 9 months back on the day of Holi festival, after playing Holi and taking meals, when he came out, he heard hulla. By that time Rajani Naik (the elder father's wife) was also present behind him. On hearing that hulla, he and Rajani rushed there and saw that the accused persons namely Jara, Chandra and Maniratha were chasing Nilamani with Lathi and tangia in their hands. All of a sudden when Nilamani turned back, Chandra dealt a lathi blow on his belly, and as he fell down, Mani handed over a taniga to Jara who exhorted blows to kill Nila. Jara dealt 3 to 4 blows on the neck of Nilamani, as a result the head of Nilamani got severed from his body, with which he raised outcry. According to the witness, the accused persons leaving the lathi at the spot fled away with the tangia towards Baunsuni.
11. In course of the cross-examination P.W.3 replied that when he saw the incident, the accused persons were chasing Nilamani from their house and while running away, Nilamani stumbled down. He further replied that it might be the fact that while chasing the deceased he turned back with a hope of getting courage seeing JCRLA No. 74 of 2008 Page 10 of 30 them at the sight. Accused Jara dealt 3 to 4 blows with Taniga on Nilamani at his neck. All the said Tangia blows were dealt after he fell down on the ground.
12. P.W.4 is also a co-villager, who simply stated that in connection with the case the police came to his village and in his presence seized the blood stained earth and sample earth from the spot and one lathi lying at the spot and prepared the Seizure List wherein he put his L.T.I. He also identified the lathi under M.O.-II. This witness was declared hostile. During the course of cross- examination, this witness stated that the tangia was brought out from the deep water. At that time the co-villagers, namely Pratap Naik, Jaya Naik and others of his village as well as the villagers of the village Tikarpada were also present. The lathi brought out from the water was seized by the police at the spot where the blood stained sample earth were seized in front of the house of the accused.
13. P.W.5 is an official witness to the seizure. P.W.6 too is a witness to the seizure being the Constable.
14. P.W.7 - Balabhadra Naik is another eye-witness to the occurrence. He stated on oath that on the last Holi festival between 3:30 to 4:00 PM, while he was in the village street, heard some hulla from the land of Raju Panda, which is about 30 to 40 cubits JCRLA No. 74 of 2008 Page 11 of 30 away from the place where he was present. Chandra, Jarasing and Maniratha while were chasing Nila Naik, Chandra dealt a lathi blow to his stomach, as a result Nila fell down. He further stated that Maniratha with an intention to kill Nila handed over a tangia to Jara, who then dealt 3 to 4 blows by means of tangia on the neck of Nila thereby severing the head from his body in spite of his protest all through the incident. Then Chandra leaving the lathi with which he had assaulted Nila at the spot, fled away with the tangia. Nothing material could be elicited from the witness during his cross-examination except that the witness replied he cannot say any injury on the accused person at the time of attack on Nila. He so denied his knowledge if the accused Chandra on the same day sustained head injury and was hospitalized for the same.
15. P.W.8 is the photographer. P.W.9 is the Assistant Surgeon who conducted the autopsy over the dead body of the deceased. P.W.10 is the Investigating Officer.
16. Dr. Lily Begum is the doctor who deposed on oath that on 05.03.2007 he was the Asst. Surgeon in the Dist. Headquarters Hospital, Boudh. On that day on police requisition, he conducted Post Mortem examination on the dead body of Nila Naik, son of Madan Naik of Baidyanathpur, under Baunsuni PS. in connection with Baunsuni PS Case No.22 of 4.3.2007 being identified by JCRLA No. 74 of 2008 Page 12 of 30 Constable No. 111 - Sri P. N. Majhi, Constable No. 130 - Sri K. S. Pradhan and Home Guard Manu Naik of Baunsuni PS at 1.30 PM and found as follows:
EXTERNAL APPEARANCE Decapitated dead body of a male of 48 years of age was brought for PM examination. There was rigor mortis present in all four limbs.
INJURIES:
Abrasion on the left side of the abdomen of size 4 cm x 1/4 cm. The head was completely separated from the trunk. The neck muscles were found cut. The neck vessels like internal carotid jugular veins of both sides were found cut in two pieces. Blood clots were found on trachea (wind pipe- food pipe) were found cut in two pieces. The vertebrate was found cut at C/4 level with laceration of vertebral artery. The skin over and around the neck was found cut. The margins were sharp and inverted. All the other vital organs were intact.
OPINION Cause of death was due to decapitation of head from the trunk leading to profuse bleeding and shock which is ante-mortem in nature. The time since death was around 20 hours at the time of PM Examination. She proved the Post Mortem Examination Report vide Ext.12 and her signature on the same vide Ext. 12/1. It is further stated by the doctor that on 26.04.07 she received a requisition regarding the probable cause of the injuries by the weapons seized in the case, which were produced before her by the O.I.C, Baunsuni PS in connection with Baunsuni PS Case No.22 dt. 4.3.2007, and on examination of the weapons of offence, i.e. one Tangia and a wooden Lathi in connection with her P.M. Report, she opined that the said injuries on the deceased could have been caused by such weapons of offence. She proved the opinion vide JCRLA No. 74 of 2008 Page 13 of 30 Ext. 13 and her signature vide Ext. 13/1 on the said report. The doctor also identified M.O.-I already marked to be the said Tangia and M.O.-II is that Lathi, she had examined as produced before her for her opinion.
17. Three witnesses were examined on behalf of the Defence, who stated with regard to the fact that, after his marriage, the accused Maniratha Guru to have resided in his in-laws' house at Sahajpal as illatum son-in-law and blessed with two children. D.W.1 is the wife of Maniratha. She deposed that the deceased Nila being the cousin brother of her husband was elder to him. Nila had two wives, namely Shubhra and Rajani. Police arrested her husband from her parental house at Sahajpal. Prior to the marriage, her husband was staying at Baidyanathpur along with her father-in-law and earning their livelihood from cultivation and bamboo crafts. According to the witnesses, at times he used to visit Baidyanathpur to see his father. She denied the suggestion of the prosecution to the effect that during festive occasion her husband used to visit Baidyanathpur. She denied any enmity with Balabhadra Naik, Rajani Naik, Srikanta Naik, Pradhan Naik, etc. She denied the suggestion of the prosecution that in the year 2007 on the day of Holi festival her husband was present in village Baidyanathpur and he along with other two accused persons namely Chandra and Jara chased the deceased Nila and that he was holding one tangia which he handed over to Jarasingh to exhort blows on Nila to kill him. JCRLA No. 74 of 2008 Page 14 of 30
18. D.W.2 also knows the place of residence of the accused Maniratha and stated that he usually resides in village Sahajpal in the house of his father-in-law as a domesticated son-in-law.
19. D.W.3 too stated on the same manner as that of P.Ws.1 & 2 regarding the place of stay of Maniratha and denied the suggestion of the prosecution that he had visited Baidyanathpur on the day of Holi festival.
20. The learned trial court believing the evidence of the eye-
witness account, namely P.Ws 2, 3 & 7 and the post-occurrence witness P.W.1 coupled with the medical evidence adduced through P.W.9, found the prosecution case to be cogent and beyond reproach. The learned trial court also found that Nila Naik was murdered by means of sharp cutting weapon for the decapitation of the body from the head, which is homicidal in nature. The learned court also held that the versions of eye-witness are consistent and coherent to each other. It also held the presence of the witnesses at the scene of occurrence being credible found their evidence unimpeachable and further, the opinion of the doctor to the effect that the death to have occurred by the blows being exhorted on the neck of the deceased, by which the neck got completely severed from the body, conclusive to hold the death to be homicidal in nature. The court further held that the evidence as to the recovery JCRLA No. 74 of 2008 Page 15 of 30 of weapon of offence at the instance of the accused Jarasingh being contemporaneous to the statement recorded in that behalf under Section 27 of the Evidence Act, well proves the recovery and the opinion of the doctor that the injuries could be out of the said weapon of offence coupled with the evidence discussed herein before cumulatively establishes the accused Chandra Guru and Jarasingh Guru to be the author of the murder, held the evidence insufficient as to the presence of the accused Maniratha and doubtful and holding Chandra Guru and Jarasingh Guru guilty of the offence under Section 302/34 of IPC extended the benefit of doubt to Maniratha and acquitted him there under and sentenced Chandra Guru and Jarasingh Guru in the offence under Section 302/34 of IPC and sentenced them as stated above.
21. It is submitted by learned counsel for the Appellants that the finding of the learned court below showing nexus between crime and the criminal has not been proved. This is because the earlier statement of the witnesses recorded under Section 161 CrPC being discrepant to the substantive evidence forthcoming from the witnesses, raises an eyebrow to the prosecution case. He further argued that the deceased being aggressor in the incident, who entered quarrel with the accused Chandra Guru and Jarasingh demanding money to be spent on the occasion of Holi and on being refused, assaulted Chandra Guru by which the Appellant sustained JCRLA No. 74 of 2008 Page 16 of 30 bleeding injury to his head and became senseless and to that effect Chandra Guru lodged report well probabilises a case of sudden provocation and the incident to be an outcome of heat of passion. The learned counsel also argued that the evidence to the effect that the Appellant Chandra Guru chased the deceased and dealt lathi blow is far from truth and is an afterthought. According to the learned counsel for the Appellants, even for the sake of argument if it is accepted for a moment that Chandra Guru chased the deceased and dealt a lathi blow, the injury caused to him by the deceased by means of the butt of the gun carried by him might be an act just to dissuade the deceased from continuing the quarrel but cannot be said to have had any intention whatsoever in the murder of the deceased. The statement made by the witnesses nowhere reveals the accused Chandra Guru to have shared intention with Jarasingh Guru either in exhorting blow or helping him in any manner at the time Nila was being assaulted. The act alleged against the Appellants, as forthcoming from the evidence, leads only to the conclusion that in retaliation to the injury caused to him, the accused chased to see him away and not beyond it. Consequently, the findings recorded by the learned trial court as to the murder to have taken place in furtherance of the common intention allegedly shared by accused Chandra Guru with Jarasingh, cannot be sustained in the eye of law. He also submitted JCRLA No. 74 of 2008 Page 17 of 30 that the evidence with regard to the disclosure statement and the recovery of weapon of offence pursuant to such disclosure has not been proved to its hilt and it cannot be said that the accused pursuant to his disclosure statement gave recovery of the weapon of offence and further the version of the witnesses being contradictory to each other, their presence at the scene of occurrence cannot be believed and in absence of any other circumstance, the findings recorded by the learned trial court holding the accused persons to have authored the death of the deceased, cannot sustain in the eyes of law and judgment is necessarily to be set aside.
22. Learned Additional Standing Counsel on the contrary held the impugned judgment to be absolutely correct and legal in all respect. Elaborating his submission, Mr. Mishra, learned Additional Standing Counsel submitted that the evidence of the eye-witness account is consistent not only to the effect that the accused shared the common intention in causing the death of the deceased by exhorting blows by means of tangia with decapitation but also the fact that the circumstances establishing the fact that the accused persons chased the deceased on the blow being exhorted by Appellant No.1 Chandra Guru by means of lathi, that the deceased fell down where upon the Appellant No.2 - Jarasingh Guru gave blows on his neck severing the head from the body causing JCRLA No. 74 of 2008 Page 18 of 30 instantaneous death proved beyond any reasonable doubt and the evidence led by the witnesses being credible and the testimonies being not shaken in any manner, the same stands the test of a robust quality to inspire confidence to have implicit reliance on it. According to the learned counsel, the disclosure statement which has consistently been proved through the witnesses and documents coupled with the production of the weapon of offence well identified by the doctor overwhelmingly proves the case of the prosecution to deduce the Appellants to be its author and the ghastly murder squarely makes them liable for the punishment awarded by the trial court and requires no interference.
23. Admittedly, the case of the prosecution is based on direct evidence of the eye witness account besides the circumstance with regard to the discovery of the weapon of offence pursuant to the disclosure statement made by Appellant No.2 - Jarasingh Guru who led the police along with the witnesses to the place of concealment and gave recovery of the weapon of offence.
24. The first and foremost point that needs evaluation is the findings of the learned court as to the nature of death. In this regard, of course the evidence of the Doctor (P.W.9) who categorically opined the death of the deceased to be out of injuries caused to the deceased due to decapitation, goes unchallenged and JCRLA No. 74 of 2008 Page 19 of 30 any person with little prudence would also come to the conclusion that the decapitation would under no circumstances possible without a human interference when the case of neither party that the deceased had been to such place where there is chance of being attacked by any other source other than human. The evidence of the witnesses, viz. P.Ws. 2, 3 & 7 coupled with the immediate cause of the death enumerated in the Inquest Report proved under Exhibit vouchsafe the above reasoning and well establishes the death of the deceased to be one of homicidal in nature and we are of the humble view that the learned trial court has correctly assessed the same.
25. Next point that requires evaluation is whether the death of the decease is one within the ambit of section 300 IPC to adjudge the same as "murder" as held by the learned court below. Learned counsel for the Appellants, as discussed above, contended that the death is not "murder" but culpable homicide not amounting to murder and, as such, the conviction of the Appellants under Section 302 IPC is not sustainable in the eye of law.
26. As discussed above, the three eye-witnesses, viz. P.Ws. 2, 3 & 7 have clearly and unambiguously narrated the manner in which the Appellants caused assault on the deceased. The intensity and the gravity with which the blow exhorted on the deceased by use of JCRLA No. 74 of 2008 Page 20 of 30 heavy weapon like "taniga" severing the head from the body, leaves no room to believe that the assailant had a very clear intention to do away with the life of the deceased instantaneously. The Doctor (P.W.9) in his evidence described the nature of injuries sustained is ghastly and fatal for being decapitated. The incisive cross-examination faced by the eye witnesses and the doctor from the side of the defence in respect to the manner of assault, intention in exhorting the assault and above all the circumstances enabling the witnesses to be at the scene of occurrence corroborating the prosecution case in minute detail could not be demolished in any manner. Rather the reply of the witnesses during cross examination reinforced their statements made on oath, which is so consistent and coherent that the credibility and worthiness of the witnesses cannot be questioned. The evidence brought by the prosecution to the effect that the deceased having entered hot exchange of words with Chandra Guru while was returning to his home had to bite the dust in the paddy filed of Raju Panda on being attacked by the Appellants, might be on a trivial issue but the motive appears to be clear that in retaliation to the demand of the deceased for the sum of Rs.500/- (Rupees five hundred) that the assailants got enraged and in order to wreak their vengeance decided to see him dead by any means. In all probabilities, the ocular version of the witnesses coupled with the JCRLA No. 74 of 2008 Page 21 of 30 medical evidence which firmly opined the death to be one of homicidal in nature resulting from decapitation, found conclusive to the fact that the Appellants had absolute intention and knowledge that the deceased would have no escape but to have the death instantaneously. On the face of such prolific evidence there is no evidence whatsoever to deduce anything contrary that the act of assault is the result of a sudden provocation and the amount of cruelty shown in the assault is so ghastly that it cannot be termed under any stretch of imagination to be an assault under heat of passion. The death of the deceased is, therefore, a "murder" within the meaning of Section 300 IPC as correctly held by the learned court below.
27. The next submission of the learned counsel for the Appellant is that, Chandra Guru - Appellant No. 1 has not shared intention with Appellant No.2 - Jarasingh Guru and, as such, is not liable for the death of the deceased. We are anxious to deal with this issue too to ascertain if the learned court below has reached a just decision.
28. In the matter of Birendra Das v. State of Assam reported in 2014(2) Supreme 585 the Apex Court held that the essence of Section 34 IPC is simultaneous consensus of mind of persons participating in the criminal action to achieve a particular result. Further in the matter of State of Maharashtra vs. Jagmohan JCRLA No. 74 of 2008 Page 22 of 30 Singh Kuldip Anand reported in 2004 SCC (cri) 2003 the Apex Court held that, for establishing "common intention" in every case, it is not required for the prosecution to prove pre-arranged plot or prior concert.
29. In Shishpal @ Shishu Vs. State (NCT of Delhi) [Criminal Appeal No. 1053 of 2015] and Roshan Vs. State (NCT of Delhi) [Criminal Appeal No. 81 of 2018] the Apex Court referring to the case in the matter of Jasdeep Singh alias Jassu v. State of Punjab, (2022) 2 SCC 545 considered the scope of Section 34 IPC as follows:
"17. We shall first go back into the history to understand Section 34 IPC as it stood at the inception and as it exists now.
Old Section 34 IPC New Section 34 IPC "34. Each of several persons "34. Acts done by several persons liable for an act done by all, in in furtherance of common like manner as if done by him intention.-When a criminal act is alone.-When a criminal act is done by several persons, in done by several persons, each furtherance of the common of such persons is liable for intention of all, each of such that act in the same manner as persons is liable for that act in the if the act were done by him same manner as if it were done by alone" him alone."
18. On a comparison, one could decipher that the phrase "in furtherance of the common intention" was added into the statute book subsequently. It was first coined by Barnes Peacock, C.J. presiding over a Bench of the Calcutta High Court, while delivering its decision in R. v. Gorachand Gope [R. v. Gorachand Gope, 1866 JCRLA No. 74 of 2008 Page 23 of 30 SCC OnLine Cal 16] which would have probably inspired and hastened the amendment to Section 34 IPC, made in 1870. The following passage may lend credence to the aforesaid possible view : (SCC OnLine Cal) "It does not follow that, because they were present with the intention of taking him away, that they assisted by their presence in the beating of him to such an extent as to cause death.
If the object and design of those who seized Amordi was merely to take him to the thannah on a charge of theft, and it was no part of the common design to beat him, they would not all be liable for the consequence of the beating merely because they were present. It is laid down that, when several persons are in company together engaged in one common purpose, lawful or unlawful, and one of them, without the knowledge or consent of the others, commits an offence, the others will not be involved in the guilt, unless the act done was in some manner in furtherance of the common intention. It is also said, although a man is present when a felony is committed, if he take no part in it, and do not act in concert with those who commit it, he will not be a principal merely because he did not endeavour to prevent it or to apprehend the felon. But if several persons go out together for the purpose of apprehending a man and taking him to the thannah on a charge of theft, and some of the party in the presence of the others beat and ill-treat the man in a cruel and violent manner, and the others stand by and look on without endeavouring to dissuade them from their cruel and violent conduct, it appears to me that those who have to deal with the facts might very properly infer that they were all assenting parties and acting in concert, and that the beating was in furtherance of a common design. I do not know what the evidence was, all that I wish to point out is, that all who are present do not necessarily assist by their presence every act that is done in their presence, nor are consequently liable to be punished as principals."
19. Before we deal further with Section 34 IPC, a peep at Section 33 IPC may give a better understanding. Section 33 IPC brings into its JCRLA No. 74 of 2008 Page 24 of 30 fold a series of acts as that of a single one. Therefore, in order to attract Sections 34 to 39 IPC, a series of acts done by several persons would be related to a single act which constitutes a criminal offence. A similar meaning is also given to the word "omission", meaning thereby, a series of omissions would also mean a single omission. This provision would thus make it clear that an act would mean and include other acts along with it.
20. Section 34 IPC creates a deeming fiction by infusing and importing a criminal act constituting an offence committed by one, into others, in pursuance to a common intention. Onus is on the prosecution to prove the common intention to the satisfaction of the court. The quality of evidence will have to be substantial, concrete, definite and clear. When a part of evidence produced by the prosecution to bring the accused within the fold of Section 34 IPC is disbelieved, the remaining part will have to be examined with adequate care and caution, as we are dealing with a case of vicarious liability fastened on the accused by treating him on a par with the one who actually committed the offence.
21. What is required is the proof of common intention. Thus, there may be an offence without common intention, in which case Section 34 IPC does not get attracted.
22. It is a team effort akin to a game of football involving several positions manned by many, such as defender, mid-fielder, striker, and a keeper. A striker may hit the target, while a keeper may stop an attack. The consequence of the match, either a win or a loss, is borne by all the players, though they may have their distinct roles. A goal scored or saved may be the final act, but the result is what matters. As against the specific individuals who had impacted more, the result is shared between the players. The same logic is the foundation of Section 34 IPC which creates shared liability on those who shared the common intention to commit the crime.
23. The intendment of Section 34 IPC is to remove the difficulties in distinguishing the acts of individual members of a party, acting in JCRLA No. 74 of 2008 Page 25 of 30 furtherance of a common intention. There has to be a simultaneous conscious mind of the persons participating in the criminal action of bringing about a particular result. A common intention qua its existence is a question of fact and also requires an act "in furtherance of the said intention". One need not search for a concrete evidence, as it is for the court to come to a conclusion on a cumulative assessment. It is only a rule of evidence and thus does not create any substantive offence.
24. Normally, in an offence committed physically, the presence of an accused charged under Section 34 IPC is required, especially in a case where the act attributed to the accused is one of instigation/exhortation. However, there are exceptions, in particular, when an offence consists of diverse acts done at different times and places. Therefore, it has to be seen on a case-to-case basis.
25. The word "furtherance" indicates the existence of aid or assistance in producing an effect in future. Thus, it has to be construed as an advancement or promotion.
26. There may be cases where all acts, in general, would not come under the purview of Section 34 IPC, but only those done in furtherance of the common intention having adequate connectivity. When we speak of intention it has to be one of criminality with adequacy of knowledge of any existing fact necessary for the proposed offence. Such an intention is meant to assist, encourage, promote and facilitate the commission of a crime with the requisite knowledge as aforesaid.
27. The existence of common intention is obviously the duty of the prosecution to prove. However, a court has to analyse and assess the evidence before implicating a person under Section 34 IPC. A mere common intention per se may not attract Section 34 IPC, sans an action in furtherance. There may also be cases where a person despite being an active participant in forming a common intention to commit a crime, may actually withdraw from it later. Of course, this is also one of the facts for the consideration of the court. Further, the JCRLA No. 74 of 2008 Page 26 of 30 fact that all accused charged with an offence read with Section 34 IPC are present at the commission of the crime, without dissuading themselves or others might well be a relevant circumstance, provided a prior common intention is duly proved. Once again, this is an aspect which is required to be looked into by the court on the evidence placed before it. It may not be required on the part of the defence to specifically raise such a plea in a case where adequate evidence is available before the court."
30. Taking a cue from the principles discussed above, when the case in hand is examined, it emerges that in his evidence, P.W.10, the I.O. has stated that Appellant No.1 - Chandra Guru received injury and he had sent requisition to that effect for his treatment and also obtained injury report under Ext.23, but the investigation was not directed to explain the cause of the injury, although the evidence is forthcoming that the deceased having proceeded to the house of Chandra Guru, entered into quarrel with him demanding a sum of Rs.500/- (rupees five hundred). The requisition sent by the I.O. under Ext.18 however proves the injury sustained by Appellant No.1 was on 04.03.2007 at 4.30 P.M. During cross-examination also the I.O. (P.W.10) reiterated that Appellant No.1 - Chandra Guru sustained injuries due to pelting of stone by the deceased and he had sent requisition for his treatment.
31. It is the further case of the prosecution that Appellant No.1 Chandra Guru chased the deceased and dealt a lathi blow to his belly, whereupon he fell down. There is absolutely nothing in the JCRLA No. 74 of 2008 Page 27 of 30 evidence to bring about a nexus between the blows exhorted by Chandra Guru and the death caused to the deceased, which is proved to be out of the assault by means heavy weapon like tangia. Considering the evidence of the I.O, there is clear absence of evidence with regard to the time by which Chandra Guru sustained injury, got his treatment in the hospital and the chase made on the deceased by him. Accepting the evidence of the prosecution witnesses that Appellant No.1 - Chandra Guru chased the deceased and dealt a lathi blow, nothing can be inferred that he had an intention to cause the death of the deceased. Even otherwise, there is no specific evidence from any source that Appellant No.1 - Chandra Guru was present at the scene of occurrence when the Appellant No.2 was assaulting the deceased. The stray sentence in the evidence of P.W.7 that after the assault, Appellant No.1 - Chandra Guru left the place with tangia stands not corroborated by the evidence of other witnesses, and further on the face of the evidence of the prosecution that Appellant No.2 gave recovery of the tangia pursuant to his disclosure statement makes such statement of P.W.7 not acceptable. In the background facts as emerged in the evidence, the overt act of Appellant No.1 could at best be taken that he chased the deceased to see that the deceased does not take further attempt to injure him in any manner. This is because neither Appellant No.1 Chandra Guru nor Appellant No.2 JCRLA No. 74 of 2008 Page 28 of 30 was armed with any other weapon while the witnesses stated to have seen them chasing. The assault proved to have been made by Appellant No.2 at the spot is absolutely an act solely attributable to him alone and there is nothing to ascribe a liability of sharing intention by Appellant No.1 with that of Appellant No.2 to fasten him in the murder of the deceased. In essence, the act of assault by which the death occurred to the deceased, cannot be attributed to Appellant No.1 on the ground that he shared the intention with Jarasingh Guru. We are, therefore, of the humble view that Appellant No.1 having not shared common intention with Appellant No.2 in the murder of the deceased, cannot be held guilty under section 302 with aid of section 34 IPC.
32. The impugned judgment convicting the Appellant No.1 - Chandra Guru is accordingly set aside. He be set at liberty forthwith. His bail bond be cancelled.
33. We are, however, of the considered view that the prosecution has been able to prove its case beyond all reasonable doubt to hold the Appellant No.2 - Jarasing Guru to have assaulted the deceased intentionally to cause his death and the learned trial court has rightly held him guilty under Section 302 of the I.P.C. and sentenced him to undergo imprisonment for life and to pay a fine of Rs.10,000/-(Rupees ten thousand), in default, to undergo further JCRLA No. 74 of 2008 Page 29 of 30 period of R.I for two years. The impugned Judgment and order of conviction to this effect is confirmed.
34. In the result, the JCRLA is allowed in part.
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Chittaranjan Dash, J.
S.K. Sahoo, J. I agree.
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S.K. Sahoo, J.
Orissa High Court, Cuttack.
Dated, the 28th November, 2023.
A.K. Pradhan, Sr. Steno.
Signature Not Verified
Digitally Signed
Signed by: ANANTA KUMAR PRADHAN
Designation: Sr. Steno
Reason: Authentication
Location: HIGH COURT OF ORISSA
Date: 29-Nov-2023 12:37:22
JCRLA No. 74 of 2008 Page 30 of 30