Orissa High Court
Jayaram Gadaba vs State Of Odisha on 4 September, 2024
Bench: D.Dash, V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.52 of 2007 (A)
AND
CRLA No.82 of 2007 (B)
In the matter of Appeals under section 374 (2) of the Code of
Criminal Procedure, 1973 and from the judgment of conviction and
order of sentence dated 28.11.2006 passed by the learned Sessions
Judge, Koraput, Jeypore in C.T. No.90 of 2005.
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1. Jayaram Gadaba .... Appellants
2. Bhakta Gadaba
(In CRLA No.52 Of 2007)
Sonu @ Bhaskar Gadba
(In CRLA No.82 Of 2007)
-versus-
State of Odisha
.... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellants- Mr. D.K. Panda, Advocate (OHCLCS) (In CRLA No.52 of 2007) Mr. J.K . Panda, Advocate (CRLA No.82 of 2007) For Respondent- Mr.P.K. Mohanty, Additional Standing Counsel CORAM:
MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing:12.08.2024 ::Date of Judgment: 04.09.2024 Since both these appeals as at (A) and (B) filed by the respective Appellants are directed against the judgment of conviction and order of sentence passed by the learned District Judge, Koraput, Jeypore in C.T. CRLA Nos.52 of 2007 & 82 of 2007 Page 1 of 15 Case No.90 of 2005 arising out of G.R. Case No.851 of 2004 corresponding to Koraput Sadar P.S. Case No.77 of 2004 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Koraput, those were heard together for disposal by this common judgment.
The Appeal as at (A) have been filed by Jayaram Gadaba and Bhaskar Gadaba who have convicted for commission of offence under section 302/34 of the Indian Penal Code, 1860 (for short, 'the IPC') and sentenced to undergo imprisonment for life and pay fine of RS.2,000/- in default to undergo rigorous imprisonment for six months.
The Appellant of the Appeal as at (B), namely, Sonu @ Bhaskar Gadaba has been held liable for commission of offence under section 302 of the IPC and accordingly he has been sentenced to undergo imprisonment for life and pay fine of Rs.2,000/- in default to undergo rigorous imprisonment for six months.
2. Prosecution Case:-
On 17.11.2004 night around 7.30 p.m., a quarrel took place between one Gani @ Ganesh Gadaba (Informant-P.W.2) on one hand and the accused persons on the other. The quarrel was going on the village 'Danda'. When altercation between them was going on, Laba Gadaba, who is the son of Gani @ Ganesh Gadaba and had been to the nearby village to purchase crackers, returned back. Seeing the accused persons quarrelling with his father-Gani @ Ganesh Gadaba, he intervened. It is stated that accused Sonu @ Bhaskar Gadaba (Appellant of the Appeal as at (B) then went to his house, which is near the spot and coming with a knife gave a stab blow at the belly of the deceased, who fell on the ground having sustained injury. It is further stated that when accused Sonu @ Bhaskar Gadaba dealt the stab blow, Page 2 of 15 CRLA Nos.52 of 2007 & 82 of 2007 accused Jayaram and Bhakta had caught hold of the hands of Laba Gadaba. Laba was then brought to his house and therefrom was shifted to the District Headquarters Hospital, Koraput where the Doctor having examined, declared him dead. Gani @ Ganesh Gadaba, the father of the deceased-Laba Gadaba then lodged the written report with the Officer- in-Charge (OIC), Koraput Police Station.
3. The OIC (P.W.11), receiving the written report from Informant (P.W.2), treated the same as FIR and registering the case, took up investigation. The Investigating Officer (I.O-P.W.11) examined the informant (P.W.2) and other witnesses. He held inquest over the dead body in presence of witnesses and prepared the report (Ext.1). The dead body was sent for post mortem examination by issuance of necessary requisition. The I.O. (P.W.11) visited the spot and prepared the spot map (Ext.12/1). He also seized the wearing apparels of the deceased and prepared the seizure list (Ext.7/1) and the accused persons were arrested by the I.O. The disclosure statement (Ext.5) of the accused Sonu @ Bhaskar Gadaba was recorded and seized the knife (M.O.III). The incriminating articles too were sent for chemical examination through court.
Finally on completion of investigation, the Final Form was submitted placing this accused persons to face the Trial for commission of offence under sections 302/34 of the IPC.
4. Learned SDJM, Korpaut having received the Final Form as above, took cognizance of the above offences and after observing formalities committed the case to the Court of Sessions. That is how Page 3 of 15 CRLA Nos.52 of 2007 & 82 of 2007 the Trial commenced by framing the charges for the said offences against all the four accused.
5. The prosecution, in the trial, has examined in total twelve (12) witnesses. Out of them, the father of Laba (deceased), who had lodged the F.I.R. (Ext.3) scribed by P.W.7 has been examined as P.W.2. P.W.1, P.W.3, P.W.4, P.W.5 and P.W.9 are the witnesses to the disclosure statement made by the accused Sonu @ Bhaskar and seizure of the knife. The Doctor who had conducted the post mortem examination over the dead body of the deceased has been examined as P.W.10 and the Investigating Officer (I.O.) is P.W.12.
6. Besides leading the evidence by examining the above witnesses, the prosecution has proved several documents which have been admitted in evidence and marked Ext.1 to Ext.14. Out of those, the important are the F.I.R. (Ext.3), inquest report (Ext.1), spot map (Ext.12/1) and Post Mortem Examination Report (Ext.10). The report of the Chemical Examiner is Ext.14. Some of the incriminating articles having been produced during Trial; those have been marked as Material Objects (M.O.-I to M.O.-VI).
7. The defence case is that of complete denial and false implication. However, no evidence either oral or documentary has been led from the side of the accused despite the opportunity.
8. Mr. D.K. Panda, learned counsel for the Appellants as at Appeal (A) submitted that the Trial Court ought not to have relied upon the evidence of P.W.1, P.W.2, P.W.3 and P.W.6 in respect of the respective roles played by the accused persons, namely, Jayaram and Bhakta as they say in holding the hands of the deceased when accused Sonu @ Bhaskar gave the stab blow since those witnesses have for the Page 4 of 15 CRLA Nos.52 of 2007 & 82 of 2007 first time developed such story during trial, having not stated earlier during investigation in their statement under section 161 of the Cr.P.C. nor before any one. Inviting out attention to the evidence of P.W.1, P.W.2 , P.W.3 and P.W.6, he further contended that on a plain reading of their evidence as regards the entire incident, the role they say to have been played by the accused persons, namely, Jayaram and Bhakta would clearly appear to be an improbability. He then elaborated that when they say accused Sonu @ Bhaskar to have gone to his house and on return to have stabbed by means of a knife, even if the evidence of P.W.1, P.W.2, P.W.3 and P.W.6 are believed to the extent that these accused persons, namely, Jayaram and Bhakta held the hands of the deceased that can by no stretch of imagination be said to facilitate the co-accused Sonu @ Bhaskar Gadaba in giving the stab blow at the belly of the deceased when in course of quarrel with Gani @ Ganesh and in view of the intervention of Laba, said holding of hands for some time is not unlikely during that course and that cannot be said only in order to facilitate accused Sonu @ Bhaskar Gadaba in giving that stab blow in concluding that they acted in furtherance of the common intention with that of accused Sonu @ Bhaskar. In support of the same, he placed reliance in cases of Ejazhusen Sabadarhusen Vs. State of Gujarat, Criminal Appeal No(s). 2007 of 2008 disposed of on 15th February, 2019; Ramesh Singh @ Photti Vs. State of A.P., 2004 (11) SCC 305 and Goudappa & Others Vs. State of Karnataka, 2013 (6) SCC 675. He, therefore, urged for acquittal of the accused persons, namely, Jayaram and Bhakta.
9. Mr. J.K. Panda, learned counsel for the Appellant-Sonu @ Bhaskar Gadaba in the Appeal as at (B) from the beginning instead of Page 5 of 15 CRLA Nos.52 of 2007 & 82 of 2007 attempting to impeach the evidence of P.W.2 , P.W.3 and P.W.6 as regards the role said to have been played by this accused Sonu @ Bhaskar in causing the stab wound at the belly of the deceased-Laba confined his submission on the score of altercation of conviction and modification of sentence. He submitted that the evidence on record do not reveal that there was any prior planning behind the incident although the parties were having prior dispute. He further submitted that as per the evidence of all the witnesses, first of all the quarrel took place between the father of the deceased (Informant) on one hand and the accused persons on the other when Laba (deceased) was not at all in picture and he having arrived some time later when intervened, the evidence of the witnesses is to the effect that accused Sonu @ Bhaskar went to his home, which is close to the spot and then dealt a stab blow at the deceased and none of them state that having done that, this accused Sonu @ Bhaskar made any attempt for the second time upon the deceased. He submitted that had that been the intention of this accused Sonu @ Bhaskar to do away with the life of the deceased, nothing was preventing him from making the second assault to ensure his death. He next submitted that the incident happened all of a sudden as would reveal from the evidence and members of rival side were in angry mood running with high temper. It was submitted that the parties hail from the Scheduled Areas of the State and they belong to Schedule Tribe Community when said Schedule Tribe Community comes within the Primitive Vulnerable Tribal Groups (PVTG) of the State of Andhra Pradesh, which is the bordering one and judicial notice of the fact can be taken that usually their temper run high and they for even silly reason respond in an aggressive manner in showing unexpected behaviour. He, therefore, submitted that cumulatively viewing all these Page 6 of 15 CRLA Nos.52 of 2007 & 82 of 2007 factors the conviction of the Appellant needs be altered to one under section 304,Part-II of the IPC and the sentence imposed be accordingly modified as deemed just and proper, commensurate the offence committed under the circumstances.
10. Learned counsel for the State while supporting the guilt against the accused persons as has been returned by the Trial Court contended that the Trial Court assigning very good reasons has accepted the version of P.W.1, P.W.2, P.W.3 and P.W.6 in respect of the role of the accused persons, namely, Jayaram and Bhakta that when they had held the deceased in his hands, it is the other accused Sonu @ Bhaskar came from home after leaving the spot for a short time and stabbed, which shows that had the deceased not been held by the two accused persons, the assailant-Sonu could not have been able to succeed in giving the blow right at the belly region. He thus submitted that the said act of these accused persons, namely, Jayaram and Bhakta as emanate from evidence has facilitated that accused Sonu @ Bhaskar in causing the stab wound on the belly of the deceased. Thus according to him, their liability has been rightly held for the offence committed by accused Sonu @ Bhaskar as having shared the common intention with the aid of section 34 of the IPC. He next submitted that with the available evidence of P.W.1, P.W.2, P.W.3 and P.W.6, the accused Sonu @ Bhaskar having stabbed the deceased at his belly by means of a knife, which has led to his death, his intention to cause the death is quiet apparent and, therefore, the conviction of accused Sonu @ Bhaskar is not liable for alteration.
11. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also extensively Page 7 of 15 CRLA Nos.52 of 2007 & 82 of 2007 travelled through the depositions of the witnesses (P.W.1 to P.W.12) examined from the side of the prosecution and have perused the documents admitted in evidence and marked Ext.1 to Ext.14 from the side of the prosecution.
12. To appreciate the argument advanced by the learned counsel for the accused Jayaram and Bhakta, it would be apt to first take note to understand the object of section 34 of the IPC. In case of Ramesh Singh (supra) and Goudappa & Others (supra), which reads as under:-
To appreciate the argument advanced on behalf of the learned counsel for the appellants, it may be possible to first take note to understand the object of Section 34 IPC incorporated in the Indian Penal Code which has been considered in Ramesh Singh's case(supra) as under: "13. Since common intention essentially being a state of mind can only be gathered by inference drawn from facts and circumstances established in a given case, the earlier decisions involving almost similar facts cannot be used as a precedent to determine the conclusions on facts in the case in hand. This view of ours finds support in a judgment of this Court in Pandurang v. State of Hyderabad AIR 1955 SC 216 wherein while considering the applicability of Section 34 IPC this Court held thus :
"But to say this no more than to reproduce the ordinary rule about circumstantial evidence, for there is no special rule of evidence for this class of case. At bottom, it is a question of fact in every case and however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference, or, as we prefer to put it in the time honoured way, 'the incriminating facts must be Page 8 of 15 CRLA Nos.52 of 2007 & 82 of 2007 incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis'.
As we have said, each case must rest on its own facts and the mere similarity of the facts in one case cannot be used to determine a conclusion of fact in another."
This view derives support in a judgment in case of Mohan Singh Vs. State of Punjab AIR 1963 SC 174, which reads as follows:
That inevitably takes us to the question as to whether the appellants can be convicted under Section 302/34.
Like Section 149, Section 34 also deals with cases of constructive criminal liability. It provides that where a criminal act is done by several persons in furtherance of the common intention of all, each of such person is liable for that act in the same manner as if it were done by him alone. The essential constituent of the vicarious criminal liability prescribed by Section 34 is the existence of common intention. If the common intention in question animates the accused persons and if the said common intention leads to the commission of the criminal offence charged, each of the persons sharing the common intention is constructively liable for the criminal act done by one of them. Just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so the existence of a combination of persons sharing the same common intention is one of the features of Section 34.
In some ways the two Sections are similar and in some cases they may overlap. But, nevertheless, the common intention which is the basis of Section 34 is different from the common object which is the basis of the composition of an unlawful assembly.
Common intention denotes actioninconcert and Page 9 of 15 CRLA Nos.52 of 2007 & 82 of 2007 necessarily postulates the existence of a prearranged plan and that must mean a prior meeting of minds. It would be noticed that cases to which Section 34 can be applied disclose an element of participation in action on the part of all the accused persons. The acts may be different; may vary in their character, but they are all actuated by the same common intention. It is now well-settled that the common intention required by Section 34 is different from the same intention or similar intention. As has been observed by the Privy Council in Mahbub Shah v. King Emperor I.L.R. (1945) Ind Ap 148 common intention within the meaning of Section 34 implies a pre-
arranged plan, and to convict the accused of an offence applying the Section it should be proved that the criminal act was done in concert pursuant to the prearranged plan and that the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case.
13. The essence of the joint liability during the criminal act in furtherance of such common intention has been discussed by the Apex Court in Ramashish Yadav and Others Vrs. State of Bihar, 1998 (8) SCC 555 wherein it was held as under:
"Section 34 lays down a principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The distinct feature of Section 34 is the element of participation in action. The common intention implies acting in concert, existence of a prearranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. It requires a prearranged plan and it presupposes prior concert. Therefore, there must be prior meeting of Page 10 of 15 CRLA Nos.52 of 2007 & 82 of 2007 minds. The prior concert or meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. It can also be developed at the spur of the moment but there must be pre- arrangement or premeditated concert."
14. It is clear from the principles laid down that however similar the facts may seem to be in a cited precedent, the case in hand should be determined only on its facts and circumstances and the mere similarity of the facts in one case cannot be used to determine the conclusion of the fact in another. Common intention being the state of mind can be gathered by inference drawn from the facts and circumstances established in a given case. The cases involving almost similar facts and circumstances cannot be used as precedent to determine the conclusions on facts in the case in hand.
Taking note of the law as laid down and as understood by us, it will be apposite to take note of the facts of the case as to whether prosecution has been able to establish beyond reasonable doubt the sharing of common intention to commit the murder of deceased Laba by these accused persons, namely, Jayaram, Bhakta and Sonu @ Bhaskar.
15. The prosecution witnesses have stated that when Laba protested as to why the accused persons were quarreling with his father; at that time accused Jayaram and Bhakta caught hold of the hands of Laba. But they do not state that soon thereafter accused Sonu @ Bhaskar gave the knife blow. They state that after these accused persons held the hands of Laba, accused Sonu @ Bhaskar went home and bringing Page 11 of 15 CRLA Nos.52 of 2007 & 82 of 2007 the knife pressed it into the belly. The said story appears to be improbable when it can be well inferred that for that accused Sonu @ Bhaskar, it must have taken some time though little it be to go inside the house, bring the knife and again reach right in front of Laba. In order to support the same, we also do not find the evidence of P.W.2, the father of the deceased as he during this period does not say to have made any attempt to free his son from the clutch of these accused persons, namely, Jayaram and Bhakta so as to conclude on facts that Laba was held by them all throughout. Furthermore most surprisingly, we find that P.W.1 had not stated during investigation that when accused Sonu pressed the knife in the belly of the deceased, the two other accused, namely, Bhakta and Jayaram were holding his hands. That has also been the evidence of P.W.2, the father of the deceased who has not only mentioned in the F.I.R. (Ext.3) that when accused Sonu @ Bhaskar stabbed his son, the other two accused persons, namely, Jayaram and Bhakta were holding his hands and that was also not so stated by him during investigation. The evidence of P.W.3 also reveals the same state of affair when the evidence of P.W.6 is running completely different. He (P.W.6) says that accused Sonu @ Bhaskar in view of the protest by Laba became angry and rushed to his house and bringing a knife, pressed it into the belly of Laba. He then states that two other persons were catching hold Laba while accused Sonu pressed the knife into his belly. It has been proved through the I.O. (P.W.11) that none of the above witnesses have stated before him about the role of accused persons, namely, Jayaram and Bhakta in holding the hands of the deceased when accused Sonu @ Bhaskar stabbed at this belly. Such contradiction being on material aspect of the case, we are unable to lightly brush it aside in saying that the same would have no Page 12 of 15 CRLA Nos.52 of 2007 & 82 of 2007 adverse impact in accepting the evidence of those witnesses in so far as the accused persons, namely, Jayaram and Bhakta.
16. That apart even if, it is believed for a moment that these accused persons, namely, Jayaram and Bhakta had held the hands of the deceased, we find the evidence to be not very clear that the very intention or purpose behind their holding of the hands of the deceased was to facilitate or make the situation so possible for the accused Sonu @ Bhaskar to give the blow by means of a knife right at the belly of the deceased. Thus, we are of the considered view that the conviction of the accused persons, namely, Jayaram and Bhakta cannot be sustained for commission of offence under section 302 of the IPC with the aid of section 34 cannot be sustained and that is liable to be set aside.
17. Now coming to the submission of the learned counsel for the Appellant Sonu @ Bhaskar confined to the alteration of conviction and modification of sentence, we find the evidence of the prosecution witnesses, such as P.W.1, P.W.2, P.W.3 and P.W.6 to be consistent that when Laba protested as to why these accused persons were quarrelling with his father; accused, namely, Sonu @ Bhaskar out of anger rushed to his house and bringing a knife, stabbed, which has ultimately lead to the death. The quarrel between the accused persons on one hand and the father of the deceased on the other as stated by the witnesses was going on for quite some time and in the midst Laba (deceased) arrived and protested. It is not stated by any of the witnesses that any of the accused persons during that quarrel was holding any lethal weapon even when it is said that accused Sonu @ Bhaskar holding the knife came from his house and stabbed, it is not stated that the other two accused persons were holding any weapon then. Had there been any Page 13 of 15 CRLA Nos.52 of 2007 & 82 of 2007 intention to do away with the life of the deceased, the accused Sonu @ Bhaskar was not prevented from making a second blow to ensure the death of Laba. The parties were not having cordial relationship and in course of quarrel, ultimately the incident had happened. The parties are members of Scheduled Tribe and hail from rural background and judicial notice of the fact can be taken that they run with high temper and many a time in silly matters behave unexpectedly and respond in an aggressive manner.
18. Taking a cumulative view over what have been discussed above; we are of the opinion that the offence committed by accused Sonu @ Bhaskar would stand categorized under section 304-I of the IPC.
19. In that view of the matter the conviction of the accused sonu @ Bhaskar is altered to one under section 304 Part-I of the IPC. Since said accused is found to have remained in custody for about nine (9) years and ten (10) months; at this distance of time and keeping in view all other relevant factors including the fact that no report as to any adverse conduct of the accused has come to be received; in the interest of justice, for the offences committed by the accused under section 304-I of the IPC as held by us, we are of the considered view that the sentence of imprisonment for the period already undergone would serve and meet the ends of justice.
20. Resultantly, the Appeal as at (A) filed by the Appellants, namely, Jayaram Gadaba and Bhakta Gadaba is allowed and the judgment of conviction and order of sentence passed against them are hereby set aside. Since both of them are on bail, their bail bonds shall stand cancelled.
Page 14 of 15CRLA Nos.52 of 2007 & 82 of 2007
21. In so far as the Appeal as at (B) filed by the Appellant, namely, Sonu @ Bhaskar Gadaba is concerned, the same is allowed in part with the alteration of conviction and modification of sentence to the extent as indicated above.
(V. Narasingh), (D. Dash),
Judge Judge
Himansu
Signature Not Verified
Digitally Signed
Signed by: HIMANSU SEKHAR DASH
Reason: Authentication
Location: OHC
Date: 05-Sep-2024 12:21:53
Page 15 of 15
CRLA Nos.52 of 2007 & 82 of 2007