Orissa High Court
Maharagu @ Ranjan Banchor vs State Of Orissa on 15 April, 2024
Bench: D.Dash, V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.116 of 2005
In the matter of an Appeal under Section 374(2) of the Code
of Criminal Procedure, 1973 and from the judgment of conviction
and order of sentence dated 4th February, 2005 passed by the
learned Ad hoc Additional Sessions Judge, (F.T.), Padampur in
S.T. Case No.5/3 of 2001 (S.T. Case No.25 of 2004).
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Maharagu @ Ranjan Banchor .... Appellant
-versus-
State of Orissa .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr.S.N. Mishra-4
(Advocate as Amicus Curiae)
For Respondent - Mr.S.K. Nayak
Additional Government Advocate
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE V. NARASINGH
Date of Hearing : 05.04.2024 : Date of Judgment : 15.04.2024
D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 4th February, 2005 passed by the learned Ad hoc Additional Sessions Judge, (F.T.), Padampur in S.T. Case No.5/3 of 2001 (S.T. Case No.25 of 2004) arising out of G.R. Case No.144 of 2000 Page 1 of 13 CRLA No.116 of 2005 corresponding to Paikmal P.S. Case No.38 of 2000 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Padampur.
The Appellant (accused) thereunder has been convicted for committing the offence under sections 302/34 of the Indian Penal Code, 1860 (for short, 'the IPC'). Accordingly, he has been sentenced to undergo imprisonment for life commission of the offence under section 302 of the IPC read with section 34 of the IPC.
It is pertinent to mention here that along with this accused Maharagu @ Ranjan Banchhor, another accused, namely, Tunu Bariha had also faced the trial and he has also been convicted for commission of the offence under section 302/34 of the IPC and sentenced to undergo imprisonment for life. But, in this Appeal, he is not the Appellant before us.
2. PROSECUTION CASE:-
On 13.07.2000, one Jita Padhan (Informant-P.W.6) of Village-Jamseth under the jurisdiction of Paikmal Police Station in the District-Bargarh lodged a written report with the Assistant Sub-Inspector (A.S.I.) of Police (P.W.13) attached to Paikmal P.S. that on the previous evening around 4.00 p.m, his daughter Kumari Padhan aged about 20 years had been to the witness the car festival and thereafter she did not to the house. So, Jita Page 2 of 13 CRLA No.116 of 2005 Padhan (Informant-P.W.6) went for search of her daughter Kumari Padhan in the village. He (P.W.6) did not trace her out. He, having met this accused, was told by this accused that he had seen Kumari Padhan in the bus. He also informed that there was a quarrel between this accused and Tikelal Mallik, the would be son-in-law of Jita Padhan (Informant-P.W.6).
As the Informant (P.W.6) could not find out her daughter, he had to been to Paikamal P.S. for lodging a report in the morning. Around 2.00 p.m., Jita Padhan (Informant-P.W.6) when was returning to his house with his would be son-in-law (Tikelal Mallik), near Jamseth Panchayat Office, this accused along with other non-Appellant accused Tunu Bariha were seen armed with Bhujali. Both of them rushed towards them for assault. Out of fear, Jita Padhan (Informant-P.W.6) ran away from the spot and in the meanwhile, Jita Padhan (Informant-P.W.6) saw the non- Appellant accused Tunu Bariha dealing 3 to 4 Bhujali blows upon Tikelal and fled away. One Ghana Padhan (P.W.10) and Chakara Pujari (P.W.1) carried Tikelal to the Hospital for treartment and kept Tikelal near the house of one Pustam Majhi and gave water to him (Tikelal). When they were arranging a charpoy for shifting, Tikelal, after drinking a little water fell on the ground and died. This was witnessed by villagers, namely, Lachhaman Page 3 of 13 CRLA No.116 of 2005 Majhi (P.W.3), Ratan Majhi (P.W.5), Riki Rana, Basu Majhi (P,.W.9) and others.
On receipt of the above report, the A.S.I. of Police (P.W.13), in the absence of the Officer-In-Charge (O.I.C.), Paikmal P.S., treated the same as FIR (Ext.3) and registered the criminal case and took up the investigation.
3. The Investigating Officer (I.O.-P.W.13), in course of the investigation, examined the informant (P.W.6) at the spot. He (P.W.13) held the inquest over the dead body of Tikelal and prepared the report to that effect (Ext.8). The I.O. (P.W.13) sent the dead body of Tikelal for post mortem examination by issuing necessary requisition. He (P.W.13) also seized the sample earth, blood stained earth from the spot under seizure list (Ext.10). On 14.07.2000, he (P.W.13) handed over the charge of the investigation to the O.I.C. (P.W.12).
During his part of investigation, the (I.O.-P.W.12) seized the wearing apparels of non-Appellant accused Tunu Bariha at the P.S. under seizure list (Ext.4) and also seized the weapon of offence from the possession of said accused Tunu Bariha under seizure list (Ext.5). The wearing apparels of the deceased have been seized under Ext.5. He (P.W.12) sent the seized Bhujali to the Doctor for opinion. He (P.W.12), having visited the spot, Page 4 of 13 CRLA No.116 of 2005 prepared the spot map (Ext.7). On completion of the investigation, the I.O. (P.W.12) submitted the Final Form placing this accused along with the other accused (Tunu Bariha) to face the Trial for commission of the offence under sections 302/34 of the IPC.
4. Learned S.D.J.M., Padampur, on receipt of the Final Form, took cognizance of the said offences and after observing the formalities committed the case to the Court of Sessions for Trial. That is how the Trial commenced by framing the charge for the aforesaid offence against this accused along with that accused Tunu (not the Appellant in this Appeal).
5. The prosecution, in support of its case, has examined in total thirteen (13) witnesses during Trial. Out of them, the informant, who has been projected as an eye witness to the occurrence, is P.W.6. P.Ws.1 to 3, 5, 8, 9 & 10 are the co-villagers of the Informant (P.W.6), who have turned hostile. P.Ws.7 & 11, who are the seizure witnesses, have turned hostile. The I.O., at the end, has come to the witness box as P.W.13.
6. Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Exts.1 to 11. Page 5 of 13 CRLA No.116 of 2005 Out of those, the important are, the FIR (Ext.3), the spot map (Ext.7), inquest report (Ext.8); and the post mortem report (Ext.1).
7. This accused along with the other non-Appellant accused (Tunu) have taken the plea of complete denial and false implication. They, however, have examined two witnesses (D.Ws.1 &2).
8. Mr.S.N. Mishra-4, learned counsel for the Appellant (accused) submitted that the prosecution evidence against this accused is not on the score that he did any act being so directed against the deceased, namely, Tikelal Mallik. He further submitted that this accused has been held guilty for commission of the offence under section 302 of the IPC with the aid of section 34 of the IPC holding that he acted in furtherance of the common intention, which he and the non-appellant accused, namely, Tunu Bariha had in mind for committing the crime. He submitted that even accepting the presence of this accused at the scene of crime or on arriving there with the non-Appellant accused Tunu, for what he did subsequent thereto, ought not to have been held sufficient to record a finding that he so did the act and played the role in furtherance of the common intention of intentionally causing the death of Tikelal Mallik. He also submitted that the solitary testimony of P.W.6 on being accepted as to the role Page 6 of 13 CRLA No.116 of 2005 played and done by the accused at the scene of occurrence, he could have been at best been held guilty for commission of the offence under section 506 of the IPC and nothing more that to as against P.W.6 in criminally intimidating him by causing the fear of grievous injuries but that can even by no stretch of imagination, be said to have been so played and done in furtherance of the common intention of intentionally causing the death of Tikelal Mallik. In support of the same, he, with great pain, has invited the attention of this Court to the entire deposition of P.W.6. In view of all these above, he urged for acquittal of this accused by setting aside the judgment of conviction and order of sentence returned against him.
9. Mr.S.K. Nayak, learned Additional Government Advocate for the Respondent-State submitted all in favour of the finding of guilt against the accused as has been returned by the Trial court. According to him, the evidence of P.W.6 is very clear that this accused and the non-appealing accused Tunu were at the spot of occurrence from the beginning. He submitted that although nothing is stated against this accused in causing any bodily injury or any such other overt-act or even indirect act against that deceased Tikelal Mallik, yet, it would be evident that in order to avoid any resistance from P.W.6, this accused did the overt-act when he faced Tunu, i.e, P.W.6, and see that P.W.6 did not Page 7 of 13 CRLA No.116 of 2005 remain there at the place to save the situation. He thus submitted that on the face of the settled position of law that for the purpose of being arraigned and held guilty of an offence with the aid of section 34 of the IPC, it is always not the necessity that the accused must have done some overt-act; the impugned judgment of conviction and the order of sentence, which are impugned in this Appeal, are not liable to be interfered with.
10. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also extensively travelled through the depositions of the witnesses (P.Ws.1 to P.W.13) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.11.
11. The prosecution, by examining the Doctor (P.W.4) in the case, has proved the nature of death of Tikelal to be homicidal. He (P.W.4) had the occasion to conduct the autopsy over the dead body of Tikelal (deceased). His evidence has not been challenged by the defence either before the Trial Court or before us. The fatal injury leading to the death of Tikelal is the penetrating wound 1"
X ½" X abdominal depth over left side of fronth of abdomen, 3"
inner to left elyacne crashed. P.W.4 has stated that wound on the abdomen had punctured the intestine and consequential internal haemmorrhage resulting in shock ending in syncop of hearth. Page 8 of 13 CRLA No.116 of 2005 The I.O. (P.W.13), during his inquest, has also noted this injury in his inquest report (Ext.8). The Informant (P.W.6) has also stated to have seen the deceased Tikela lying dead with said injury on the abdomen. Based on the above medical evidence, we find that the penetrating wound on the abdomen, which had punctured the intestine causing internal haemmorhage of the abdomen has resulted the death as the shock emanating therefrom has ended with syncope or stoppage of hearth.
12. The Trial Court, then relying upon the evidence of P.W.6, has arrived at a conclusion that the prosecution has proved the charge against the non-Appellant accused Tunu for commission of the offence under section 302 of the IPC beyond reasonable doubt being the author of all such abdominal injuries. In this Appeal, we are not concerned with said judgment of conviction and order of sentence against the non-Appellant accused Tunu.
13. In order to address the rival submission, now let us straightway have a glance at the evidence of P.W.6. He is none other than the father-in-law of the deceased. We find from his evidence that this accused was annoyed with P.W.6. it is his evidence that the incident took place in front of the Jameseth Gram Panchayat Office and this accused as well as the other non- Appellant accused Tunu were present there. His further evidnece Page 9 of 13 CRLA No.116 of 2005 in specific term is that this accused caught-hold of him and when he escaped from his clutch, accused Tunu caught-hold of Tikelal and gave bhujali blow to him on his abdomen. His evidence is that this accused had chased him (P.W.6). If we go sequence wise, we find the evidence of P.W.6 to be definite on the score that when accused Tunu gave the blow on the abdomen of the deceased by means of a bhujali, this accused was not near accused Tunu and it is not stated that he in any way helped the non-Accused accused Tunu either by providing bhujali or by doing something so as to facilitate that non-Appellant accused Tunu Bariha in giving this fatal/murderous blow on the abdomen of the deceased. In fact, this P.W.6 has stated that at the first sight, this accused had caught-hold of him (P.W.6). So, this matches with the evidence of P.W.6 and provides the reason that since the accused was annoyed with P.W.6 for obvious reason, he retrained P.W.6, but P.W.6 could manage to escape. It is also not then stated by P.W.6 that after he escaped, this accused had turned his attention towards deceased Tikelal Mallik in doing any further act either directly or indirectly directing against that deceased Tikelal Mallicik.
With the above evidence on record, the question before us whether this accused can be held guilty for commission of the Page 10 of 13 CRLA No.116 of 2005 offence under section 302 of the IPC with the aid of section 34 of the IPC.
14. It is the settled principle of law that for a person to be guilty for the principal offence with the aid of section 34 of the IPC, the Court must first find the existence of a common intention animating the accused leading to dos such criminal act in furtherance of such intentions that he would be liable for the act done to the other accused. The provision is intended to meet a case where difficulty arises to distinguish between the acts of the individual members of a party, who acts in furtherance of common intention of all or to prove exactly what part was taken by each of them. It is also the settled of law that even if no injury has been caused by a particular accused himself in so taking into the account, the role played by him and the act done, provision of section 34 of the IPC can stand to be applied for holding the accused guilty of the principal offence. It is not necessary that in every case, the accused must do some overt-act. But in order to attract section 34 of the IPC as against that accused, it must be shown from the circumstances that he and others had shared the common intention to commit the offence and in furtherance thereof, each one played his assigned role by separate acts similar or adverse.
Page 11 of 13 CRLA No.116 of 2005
15. Adverting to the present case at hand, as already stated, except P.W.6, no other evidence is there to establish the complicity of this accused and the Trial Court in fact solely banked upon the evidence of P.W.6 to record the conviction against this accused as well as non-Appellant accused Tunu Bariha. What P.W.6 has stated, we find that first accused Tunu Bariha gave a bhujali blow on the abdomen of the deceased and before that, this accused had caught-hold of him (P.W.6) from which he could escape and it said that after he (P.W.6) managed to escape, this accused chased him. It is not stated that non- Appellant accused Tunu Bariha gave another blow by means of that bhujali upon the deceased. Therefore, it can be inferred that in order to restrain P.W.6, the accused had caught-hold of him or chased him after he managed to escape so as facilitate non- Appellant accused Tunu Bariha in causing that solitary abdominal injury by giving blow by bhujali. Thus, we are unable to concur with the finding of the Trial Court that the prosecution case stands established through the evidence of P.W.6 in so far as the guilt of this accused under section 302 of the IPC with the aid of section 34 is concerned. The evidence of P.W.6 do not successfully pass through the tests for attraction of the provision contained in section 34 of the IPC in holding that this accused guilty of commission of offence of murder of Tikelal Mallik in Page 12 of 13 CRLA No.116 of 2005 furtherance of the common intention in intentionally causing the death of Tikelal.
16. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 4th February, 2005 passed by the learned Ad hoc Additional Sessions Judge, (F.T.), Padampur in S.T. Case No.5/3 of 2001 (S.T. Case No.25 of 2004), are hereby set aside.
Since the Appellant (accused), namely, Maharagu @ Ranjan Banchhor, is on bail, his bail bonds shall stand discharged.
(D. Dash), Judge.
V. Narasingh, J. I Agree.
(V. Narasingh), Judge.
Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASST. REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 16-Apr-2024 14:39:41 Page 13 of 13 CRLA No.116 of 2005