Partly allowed

Kumar Dakua v. State

Orissa HC17 May 2023JCRLA/119/2005

Case brief

AI extract

What is this about?

In an appeal against conviction for murder, this Court held that the prosecution failed to prove a prearranged plan or common intention necessary for Section 34 IPC application. While acquitting the appellant of murder, the Court convicted him under Section 324 IPC for voluntarily causing hurt dangerous to life, emphasizing that the fatal blow was delivered without shared murderous intent.

What did the court decide?

Conviction under Section 302/34 IPC set aside. Appellant convicted under Section 324 IPC and sentenced to rigorous imprisonment for three years.

Kumar Dakua Vs State — Murder and Culpable Homicide | Orissa HC (2023)

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THE HIGH COURT OF ORISSA AT CUTTACK

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JCRLA No.119 of 2005

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From the Judgment of conviction and order of sentence dated 30.04.2005 passed by the learned Addl. Sessions Judge, (F.T.C.), Chatrapur in Sessions Case No.38 of 2004.

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Kumar Dakua ……. Appellant
-Versus-
State of Orissaa ……. Respondent

For Appellant : Mr. Sk. Zafarulla, Advocate
For Respondent : Mr. J. Katikia, Addl. Govt. Advocate

CORAM:
THE HONOURABLE SHRI JUSTICE S. TALAPATRA
THE HONOURABLE MISS JUSTICE SAVITRI RATHO

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JUDGMENT 17^th May, 2023

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S. Talapatra, J. This is an appeal under Section -374(2) of the Cr.P.C.

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challenging the judgment and order of conviction and sentence dated 30.04.2005 delivered in Sessions Case No.38 of 2004 (arising from S.C.

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No.229/2004 G.D.C.) by the Additional Sessions Judge, (Fast Track

Court), Chatrapur.

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2. By the said judgment, the appellant has been convicted under Section- 302/34 of the IPC. Consequent thereupon, the appellant has been sentenced to suffer imprisonment for life and to pay fine of Rs.1000/- (Rupees one thousand) in default to undergo simple imprisonment for six months more.

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3. The prosecution case in short is that on 25.10.2003 at about 2 p.m., the appellant had committed murder of Bhagirathi Nahak who is the brother of the informant, namely Sudarsan Nahak.

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4. It was disclosed to the Police by the informant (P.W.11) that while the deceased, namely Bhagirathi Nahak, younger brother of the informant was returning from Beguniapada market after purchasing the some goods by riding his bicycle, he was intercepted by the appellant in front of the house of Bhagaban Pahan at Beguniapada main road. It has been also informed that the appellant was collaborated by Rabi Nayak

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in restraining him. The said attack was on account of previous enmity.

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The deceased was dragged after tying a gamucha around his neck. The deceased fell down and at that time Rabi Nayak had hammered on his head by a big stone. The deceased sustained grievous bleeding injury and became senseless due to profuse bleeding.

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5. According to the informant, Shyam Pahan (not examined in the trial), Laxmi Narayan Mohanty (P.W.15), Duryodhan Nayak (P.W.12) and others had witnessed the occurrence. Seeing them, the appellant and said Rabi Nayak fled away from the place of occurrence.

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6. The informant heard about the incident, came to the spot and found his brother lying on the spot with profuse bleeding. The deceased was unconscious. The stone with which the deceased was hammered on

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his head was lying on the spot with blood stains.

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7. Laxmi Narayan Mohanty, Duryodhan Nayak, Banamali Mohanty, Bina Palo (P.W.10), Bisu Mohanty (not examined in the trial) and others from their village took the injured to the Khallikote Medical. But as the condition of the injured (the deceased) was precarious, he was shifted to Berhampur Hospital by ambulance.

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8. Laxmi Narayan Mohanty (P.W.15) informed P.W.11 (the informant) over phone that in the evening on the date of occurrence, the

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brother of the informant was killed and his dead body was lying there. Immediately thereafter, P.W.11 lodged the written report to the Beguniapada Out Post. The said report was sent to Kodala Police Station for registration and on the same day, the case was registered and taken up for investigation.

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9. On completion of the investigation, the final report under Section-173(2) of the Cr.P.C. was filed by charge-sheeting the appellant and Rabi Nayak, the other accused under Section 302 of the IPC.

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10. Having taken the cognizance of the offence, the case was committed to the court of the sessions for trial. Rabi @ Rabindra Nayak fled away from the jail for which only the appellant was charged under Section- 302 of the IPC to which he pleaded not guilty and prayed for

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trial.

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11. In order to substantiate the charge, as many as 17 witnesses were examined including the informant, P.W.11, Laxmi Narayan Mohanty, P.W. 15, Duryodhan Nayak, P.W.12 and Bina Pala, P.W.10.

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12. After recording the prosecution evidence, the appellant was examined under Section-313(1)(b) of the Cr.P.C. when he simply denied his involvement in the occurrence in which the younger brother of the informant P.W.11 was killed.

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13. The appellant denied the evidence of P.W.2, Bijay Kumar Mohanty, P.W.3, Surendra Mohanty, P.W.4, Jagannath Bagh, P.W.5, Gantei Pal, P.W.6, Nilakantha Nayak, P.W.7, Gola Gouda and P.W.9, Surendra Mohanty. Those witnesses testified in the trial and stated that the appellant along with Rabindra @ Rabi Nayak killed the deceased,

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Bhagirathi Nahak by means of stone in front of the house of Bhagaban Pahan at village- Beguniapada.

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14. Similarly, the evidence of P.W.10, Beena Palo has been denied by the appellant. P.W.10 testified that the appellant and Rabindra Nayak @ Rabi dashed the deceased by fastening the Khurda gamucha around the neck of the deceased. P.W.10 has also stated that Rabi Nayak hammered a big stone on the left side of the head of Bhagirathi Nahak (the deceased). The other statement relating to the situs of crime, the injury of the deceased, the seizure of the material object/s were all denied by the appellant. But, the appellant did not adduce any evidence in his defence. During his examination he had claimed that he was totally innocent and he had been framed in this case falsely.

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15. On appreciation of the evidence, the Additional Sessions Judge (hereinafter referred to as the trial judge) returned the finding of the conviction having observed as follows:

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“…..even if, there was no previous enmity between the accused and deceased and even if there was no preparation to murder the deceased, but the evidence available in record categorically brought to my knowledge by the learned Addl. P.P. that when the accused along with Rabindra Nayak dashed the cycle of the deceased and there was exchange of hot words between them it provoke(d) the accused to assault the accused for which he along with Rabindra Nayak were tying the neck of the deceased by means of a gamucha and dragged him for which the deceased fell down and even after he fell down, accused Kumar Dakua was tying his neck forcibly was holding the gamucha. Had he not tying the gamucha forcibly after fall of the deceased, the deceased could have saved himself and could

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have able to run away from the spot before he was hammered by a stone by Rabindra Nayak. But in my opinion the accused Kumar Dakua has given opportunity to Rabindra Nayak to hammer the stone on the head of the deceased. So, I came to a conclusion that the accused Kumar Dakua can be shared (sic) with the common intention by applicability of Section-34 of the IPC for the cause of death of the deceased, Bhagirathi Nahak.”

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16. The findings are challenged in this appeal in order to question the

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conviction.

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17. Mr. Zafarulla, learned counsel appearing for the appellant has

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stated that there is no evidence that there was meeting of mind for committing the murder. The culpable act of Rabindra Nayak @ Rabi has no nexus with the appellant and hence, he cannot be saddled with any criminal liability by importing Section-34 of the IPC. No common intention in perpetrating in the crime has been proved by the prosecution.

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18. The trial judge has observed that the common intention was formed in the course of transaction of the offence. According to Mr. Zafarulla, learned counsel, the said theory is totally unacceptable, as there is no evidence how such common intention was formed during the transaction of offence.

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19. Section-34 of the IPC clearly lays down that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was

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done by each of them. If the common intention in furtherance of the criminal act is proved, only then, Section-34 of the IPC can be imported to saddle criminal liability on the collaborator/s.

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Section-34 is a rule of evidence and does not create a substantive offence and to attract Section-34 of the IPC. It is essential to prove that(1) the criminal act consists of series of acts could not be done by one person, but more than one person and (2) doing of every such individual act cumulatively resulting in the commission of the criminal offence can be treated as in furtherance of the common intention of all such persons.

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20. In the case in hand, there is no such proof that the common intention was formed before the transaction of the criminal act could take place. There is no evidence that in furtherance of the common intention, the criminal act was committed by the appellant. In Suresh vs. State of U.P.: (2001) 3 SCC 673 , it has been enunciated by the apex court that the common intention cannot be hypothetical. It should be real one. There should be convincing evidence of sharing the common intention from the transaction of crime, committed by the person who is accused of sharing common intention. If the other accused is made liable for the principal offence, the person collaborating may be made vicariously liable for commission of the crime. Mr. Zafarulla, learned

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counsel has stated that the trial judge has committed a serious error of law by reading the evidence perversely and holding that the appellant had shared the common intention with the other accused, Rabi @ Rabindra Nayak.

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21. Even the concept of presence of the co-accused at the scene is not a sina qua non to attract Section-34. The co-accused can remain away and supply weapons to the participating accused either by throwing or by catapulting them so that the participating accused can inflict injuries on the targeted person. Another illustration which has been given in Suresh (supra) is that one of the persons, in furtherance of the common intention, gave instruction from a distance through binoculars and mobile phones to the other accused as to how effectively the offence can be executed. In Suresh (supra) , it has been opined that such act can be brought within the purview of Section-34 of the IPC.

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To attract Section-34 of the IPC, two postulates are indispensable: (1) The criminal act consisting of a series of acts should have been done, not by one person, but more than one person and (2) Doing of every such individual act cumulatively resulted in commission of the criminal offence in furtherance of the common intention of all such persons. It has been observed in Suresh (supra) as follows:

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“Looking at the first postulate pointed out above, the accused who is to be fastened with liability on the strength of Section-34 IPC should have done some act which has nexus with the offence. Such an act need not be very substantial, it is enough that the act is only for guarding the scene for facilitating the crime. The act need not necessarily be overt, even if it is only a covert act it is enough, provided such a covert act is proved to have been done by the coaccused in furtherance of the common intention. Even an omission can, in certain circumstances, amount to an act. This is the purport of Section-32 of the IPC. So the act mentioned in Section-34 IPC need not be an overt act, even an illegal omission to do a certain act in a certain situation can amount to an act, e.g. a co-accused, standing near the victim face to face saw an armed assailant nearing the victim from behind within a weapon to inflict a blow. The coaccused, who could have been alerted the victim to move away to escape from the onslaught deliberately refrained from doing so with the idea that the blow should fall on the victim. Such omission can also be termed as an act in a given situation. Hence an act, whether overt or covert, is indispensable to be done by a co-accused to be fastened with the liability under the section. But if no such act is done by a person, even if he has common intention with the others for the accomplishment of the crime, Section-34 IPC cannot be invoked for convicting that person. In other words, the accused who only keeps the common intention in his mind, but does not do any act at the scene, cannot be convicted with the aid of Section-34 IPC.”

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22. We may further note that a few decisions which have exclusively dwelled upon the construct and the purport of Section-34 of the IPC. Barendra Kumar Ghosh v. King Emperor : AIR 1925 PC 1 and

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Mahbub Shah v. Emperor : AIR 1945 PC 118 were approvingly considered in Suresh (supra) along with Pandurang v. State of Hyderabad : AIR 1955 SC 216 .

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Reading of those decisions allows us to infer that to attract Section-34 of the IPC, the prosecution is under an inescapable obligation to establish the common intention, which requires a

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prearranged plan before a man can be vicariously convicted for the criminal act of another are that the act has been done in furtherance of common intention of all .

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In Suresh (supra), having referred the principles, laid down in Barendra Kumar Ghose (supra) Mahbub Shah (supra) and Pandurang (supra) , it has been enunciated as under:

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“In absence of a prearranged plan and thus a common intention, even if several persons simultaneously attack a man and each one of them by having his individual intention, namely, the intention to kill and each can individually inflict a separate fatal blow and yet none would have the common intention required by the Section. In a case like that each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any or the other. The Court emphasized the sharing of the common intention and not the individual acts of the persons constituting the crime. Even at the cost of repetition, it has to be emphasized that for proving the common intention, it is necessary either to have direct proof or prior convert or proof of circumstances which necessarily lead to that inference and “incriminating facts must be incompatible with the innocence of the accused and incapable of explanation or any other reasonable hypothesis.” Common intention, arising at any time prior to the criminal act, as contemplated under Section-34 of the Code, can thus be proved by circumstantial evidence.”

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[emphasis added]

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23. This principle has also been enunciated in Shreekantiah

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Ramayya Munipalli v. State of Bombay : AIR 1955 SC 287 , where

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the apex court has stated the law thus:

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“It is true there must be some sort of preliminary planning which may or may not be at the scene of the crime and which may have taken place long beforehand, but there must be added to it, the element of physical presence at the scene of occurrence coupled with actual participation which, of course, can be of a passive character such as

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standing by a door, provided that is done with the intention of assisting in furtherance of the common intention of them all and there is a readiness to play his part in the prearranged plan when the time comes for him to act.”

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[emphasis added]

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24. Mr. Zafarulla, learned counsel has submitted that P.W.1 (Gouranga Charan Panda), P.W.2 (Bijay Kumar Mohanty), P.W.3 (Surendra Mohanty), P.W.4 (Jaganath Bagha), P.W.5 (Gantei Pal), P.W.6 (Nilakantha Nayak), P.W.7 (Gola Gouda), P.W.8 (Lokanath Patra, the Police Constable), P.W.9 (Surendra Mohanty), are not very material witnesses, some of them are the witnesses of a big stone stained with blood, one pair of chappal, sample earth and blood stained earth, one bicycle and one gamucha stained with blood. P.W.11 (Sudarsan Nahak), the informant, P.W.13 (Pradeep Mohanty, who turned hostile to the prosecution case), P.W.15 (Laxmi Narayan Mohanty), P.W.16 (Gangadhar Bhuyan, the Investigating Officer) and P.W.17 (Dr. Sachidananda Mohanty) did not see the occurrence.

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25. According to the prosecution evidence, P.W.10- Beena Palo and

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P.W.14- Rankanath Jena are the eye witnesses of the occurrence.

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26. Mr. Zafarulla, learned counsel having referred to the testimony of P.W.10 has submitted that the occurrence took place on a spurt of moment when the appellant and other co-accused were coming from

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behind by riding a bi-cycle and dashed the cycle of the deceased, Bhagirathi Nahak. Bhagirathi had asked why they had dashed his cycle. The appellant and the co-accused dragged him by means of one Khurda gamucha tying around his neck. Bhagirathi Nahak (the deceased) fell down when Kumar Dakua was pulling him forcefully. After Bhagirathi fell down, the co-accused collected a big stone and hit on the left side of

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the head of the deceased. According to P.W.10, seeing one Duryodhan Nayak (P.W.12) coming towards the spot of occurrence, the accused fled away. To that extent, P.W.12 has corroborated P.W.10 by stating that on his arrival, he saw Rabindra Nayak and the appellant leaving the

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spot by a cycle.

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27. P.W.14, according to Mr. Zafarulla, learned counsel has testified

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in the trial and stated that he along with Tofan Mahakud was coming from Danapur to their village through Beguniapada. He saw the appellant and the co-accused tying the neck of Bhagirathi Nahak by means of a gamucha and dragged him and resultantly, Bhagirathi Nahak fell down. After he fell down, Kumar Dakua tied his neck by means of a gamucha forcibly and when he was holding him thus, Rabindra Nayak hammered a stone on the head of Bhagirathi Nahak.

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28. Mr. Zafarulla, learned counsel has also submitted that it all happened in a moment and there had been no question of sharing the common intention and as such, the appellant ought not have been convicted under Section-302 of the IPC importing Section-34 of the IPC. Hence, the finding of the trial judge in this regard is bereft of the evidence.

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29. There is no element of preparation on pre-meditation. The assault took place after hot altercation, as testified by P.W.10. It is therefore preposterous that the appellant shared a common intention for killing the deceased, Bhagirathi Nahak.

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30. At this juncture, we may refer a decision of the apex court in Harjit Singh vs. State of Punjab: 2002 SCC (CRI) 1518 , where it has been held that the common intention is a state of mind of an accused which can be inferred objectively from his conduct displayed in the course of commission of the crime and also from prior and subsequent

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attendant circumstances and/or in conjunction thereof. Mere participation in the crime with others is not sufficient to attribute common intention to one of the others involved in the crime. This subjective element of common intention therefore should be proved by

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the objective test. It is only then one accused can be made vicariously liable for the acts and deeds of the other co-accused.

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31. Mr. Zafarulla, learned counsel has made his submission fundamentally on two grounds:

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(1) P.W.14 has stated that he had not heard any altercation between the assailants and the deceased. By the time, he reached the

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spot, the accused persons fled away and the transaction was over. As such, it was not possible for him to hear the altercation. Altercation ensued when the bi-cycle of the deceased was dashed the co-accused. According to Mr. Zafarulla, learned counsel, there was no premeditation, no preparation to say least of the intention to kill the deceased. The weapon of the offence is a stone collected from the road side.

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(2) Mr. Zafarulla, learned counsel has pointed out that P.W.17, Dr. Sachidananda Mohanty who carried out the Post Mortem examination over the dead body of the deceased-Bhagirathi Nahak on 26.10.2003 has clearly stated that all the injuries could be effect of a single blow. Even the injuries, particularly injuries No.ii, iii, iv & v were possible by different blows.

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32. P.W.17 has testified that except the external injury No.i, all other injuries were simple in nature and not fatal to cause death in the ordinary course of nature.

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33. Mr. Zafarulla, learned counsel has stated that, if the testimony of P.W.17 is read with the testimony of P.W.10, there should be no confusion that it was only a single blow by the stone on the head of the deceased and that blow was given out of rage in sudden spurt of quarrel. According to him, there was no objective test of common intention. There is no indication of comprehension by the appellant that the appellant was dragging the deceased by tying him by a gamucha around his neck, the co-accused, who has evaded the trial by abscondance, would strike the victim with a stone collected from the road side. The inference that the appellant shared the common intention is thus flawed and untenable. Hence, the appellant is entitled to acquittal from the charge of sharing common intention to murder.

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34. Per contra Mr. J. Katikia, learned Addl. Government Advocate has submitted that, if the evidence is read in its entirety, it would be apparent that involvement of the appellant and the co-accused in killing the deceased Bhagirathi Nahak has been proved to the hilt by the prosecution. Mr. Katikia, learned Addl. Government Advocate has

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fairly acceded that P.Ws.2, 3, 4, 5, 6, 7, 9, 11, 12 & 15 have no direct

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knowledge or that P.Ws. 2 to 7 have stated that they have only heard about the occurrence and they have not seen the occurrence. As such, P.Ws. 2 to 7 are hearsay evidence. He has also fairly admitted that even P.W.14 did not disclose the names of the appellant and the other accused in his statement recorded under Section-161 of the Cr. P.C. But later on, he disclosed their names.

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35. According to Mr. Katikia, learned Addl. Government Advocate, placing reliance on the evidence of P.W.14, the trial judge has not committed any wrong. Rather, he has appreciated his evidence in the perspective. Even some minor discrepancies in the statements of the witnesses are not very significant, as those are not related to the core of the prosecution case. Mr. Katikia, learned Addl. Government Advocate, in his usual fairness has submitted that the only eye witness of the whole transaction of the crime is P.W.10, who has vividly stated against

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the appellant. His evidence in chief has been quite substantively reflected in the impugned judgment. He was consistent during his crossexamination. Therefore, the version of the solitary eye witness of the transaction of crime is found trustworthy and it has been rightly relied by the trial judge.

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36. Mr. Katikia, learned Addl. Government Advocate has added that even though P.W.12 is not an eye witness of the entire transaction of the offence, but he had arrived at the place of occurrence in the immediate aftermath and found the appellant and the co-accused leaving the spot by a bi-cycle.

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37. P.W.15 also located the appellant and the co-accused leaving the

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spot by riding the cycle towards Beguniapada market. Therefore, the evidence of P.Ws. 12 & 15 has clearly established the presence of the appellant and the co-accused on the spot of occurrence. Therefore, the

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trial judge has rightly observed in the impugned judgment as follows:

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“Having gone through the evidence of P.Ws. 10, 12, 14 and 15, it can be said that the prosecution proved the case, the evidence of these witnesses practically remained unchallenged. Learned S.D.C. for the accused though cross-examined them at length, nothing materials was brought out to disbelieve their evidence. The evidence of these witnesses corroborated each other and their evidence supports the post mortem report and query report vide Exts.18 & 19 respectively.”

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38. Mr. Katikia, learned Addl. Government Advocate has further

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stated that the trial judge has correctly inferred that the appellant shared common intention which was formed in the course of the transaction of

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crime and the co-accused hit on the head of the deceased by a stone. Even if the common intention was initially not found, but it had developed during the transaction. So the appellant had common intention and, therefore, no wrong has been committed by the trial judge

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by importing Section-34 of the IPC to hold the appellant vicariously liable for murder.

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39. To our query, Mr. Katikia, learned Addl. Government Advocate has submitted that the finding of the trial judge that when the accused along with Rabindra Nayak dashed the cycle of the deceased and there was exchange of hot words between them, it provoked the accused to assault, for which he along with Rabindra Nayak tied the neck of the deceased by means of a gamucha and dragged him for which the deceased fell down. Even after he fell down, the appellant (Kumar Dakua) was tying his neck forcibly and was holding the gamucha cannot be faulted with. According to Mr. Katikia, had he not been tying the gamucha and applied criminal force, the deceased could have saved his life and could have been able to run away from the spot before he was hammered by stone by Rabindra Nayak.

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40. According to Mr. Katikia, learned Addl. Government Advocate, the trial judge has correctly concluded that from the scrutiny of the transaction, it is apparent that the appellant shared the common intention with the co-accused and, as such, the finding of conviction as returned against the appellant under Section-302/34 of the IPC cannot be faulted with.

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41. For purpose of appreciating the rival contentions of the counsel for the parties, it would be apposite that we should take a meaningful survey of the evidence.

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42. P.W.1, Gouranga Charan Panda, the driver of the Ambulance transported the injured Bhagirathi Nahak with his relatives from Khallikote to M.K.C.G. Medical College, Berhampur for better treatment.

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43. P.W.2, Bijay Kumar Mohanty has testified in the trial that he came to know that Bhagirathi Nahak was assaulted by the appellant and one Rabindra Nayak by means of a stone, but in the cross-examination, he has clearly stated that he did not see the occurrence.

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44. P.W.3, Surendra Mohanty, P.W.4, Jaganath Bagh, P.W.5, Gantei Palo, P.W.6, Nilakantha Nayak & P.W.7, Gola Gouda have testified in the trial in the same manner as P.W.3 has testified in the trial. There is no difference in their testimonies. Hence, they are all hearsay witnesses even they did not disclose from whom they heard about the occurrence.

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45. P.W.8, Lokanath Patra was a Constable of Police at Beguniapada Out Post on the day of occurrence, i.e. 26.10.2003. At the direction of the S.I. of Police, he reported to the Berhampur medical in terms of the Command Certificate (Ext.2). S.I. of Police had sent the dead body for

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Post Mortem examination by preparing the dead body challan (Ext.3). P.W.8 escorted the body for the post mortem examination. He had identified the dead body of Bhagirathi Nahak to the Medical Officer, who carried out the post mortem examination.

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The Medical Officer handed over to him the wearing apparels of the deceased. Those wearing apparels were blood-stained. Those were later on produced to the S.I. of Police who was investigating the case. Even the Command Certificate was produced before the said Investigating Officer by preparation of the seizure list (Ext.4).

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46. P.W.9, Surendra Mohanty is another witness of seizure. In his presence, according to P.W.9, a big stone stained with blood and one pair of chappal along with sample earth and blood stained earth, one bycycle and one gamucha, stained with blood, were seized by preparing the seizure list on which he had put his signature in the seizure list (Ext.5).

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In the cross-examination, he has stated that the Police told him that the said stone was used for killing the deceased. He identified his signature in the seizure list also.

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47. As we have already noted, P.W.10 is the sterling witness in the prosecution case. He has categorically stated that he saw the occurrence

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from a very close distance. At the time of occurrence, he was going to the Beguniapada market from his village. He saw the appellant, Kumar Dakua and Rabindra Nayak (typed in the deposition form as Rabindra

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Nahak) were riding the same by-cycle and dashed the by-cycle of Bhagirathi Nahak, the deceased. Bhagirathi Nahak asked them why they had dashed his cycle. The appellant and Rabindra Nayak dragged him by means of one Khurda gamucha tying around the neck. For the thrust created thereby Bhagirathi fell down on the ground. The appellant had continued to tightening the gamucha around his neck. Suddenly, Rabindra Nahak hammered on the left side of the head of Bhagirathi Nahak by a big stone. Consequently, Bhagirathi sustained serious injury. According to him, Laxmi Narayan Mohanty, P.W.15 and Biswanath Mohanty (not examined in the trial), Durya Nayak, P.W.12 had reached on the spot in the wake of the occurrence and seeing them rushing towards the spot, the appellant and the co-accused fled away there from.

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48. P.W.10 along with eight other people had taken Bhagirathi to Khallikote hospital. From there, Bhagirathi was taken to Berhampur medical for better treatment. According to P.W.10, before they reached Berhampur Medical, Bhagirathi breathed his last. The gamucha (M.O.1)

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has been identified by P.W.10. One chadi (M.O.2) stained with blood, one blue coloured blood-stained tee shirt, yellow white check lungi with blood-stained (M.O.4) were seized in presence of P.W.10. He identified the seizure list (Ext.4) on which he put his signature. According to him, the occurrence took place on the main road of Beguniapada and there was no house nearby. The house of one Tuna Teli situate at a distance of more than 50 yards on the western side.

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49. P.W.10 has stated that he was travelling on foot when the said occurrence took place. He has testified in the trial as follows: “I saw the incident at a distance of 100 yards. By the time I saw the injured Bhagirathi Nahak was lying being hammered by a big stone by the accused person and by the time of my arrival near the spot, the accused persons fled away. There is a turning point (banka) towards Beguniapada and the accused persons fled away by their cycle towards Beguniapada. At the time of my arrival, I had seen Sama Pradhan was rescuing the injured Bhagirathi Nayak from the accused person. One Krushna was present all along with Sama.”

¶151

The statement as reproduced above, was made during the crossexamination. It may be noted at this juncture that two persons named by P.W.10 during his cross-examination, were not examined by the

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prosecution in the trial. The suggestion as made to discredit him has been straightaway denied by P.W.10.

¶155

50. P.W.11, Sudarsan Nayak is the elder brother of the deceased Bhagirathi Nahak. He had lodged information to the Police by stating that while Bhagirathi Nahak was returning from Beguniapada to their village by riding bi-cycle, in front of the house of Bhagaban Pahan, the appellant and the co-accused restrained him and assaulted him by a big

¶156

stone “on the back side of Bhagirathi Nahak.”

¶157

51. P.W.11 came to know about the occurrence from one Pradeep Mohanty, P.W.13. He had rushed to the spot and found the bi-cycle of his brother, gamucha stained with blood and the stone with blood lying over there. He found the blood on the road. He shifted his injured brother to Khallikote medical and thereafter to the Berhampur medical on advice of the Doctors and Khallikote medical.

¶158

On the same day, at about 5 p.m., he came to know from Laxmidhar Mohanty (not examined in the trial) that his younger brother has breathed his last. Immediately thereafter, at about 8 p.m., P.W.11 had lodged the written complaint (Ext.6). On the basis of the said written complaint, a specific Police case was registered under Section302/34 of the IPC against the appellant and the co-accused.

¶159

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52. In the cross-examination, he has clearly admitted that when he

¶162

had arrived at the spot, none of the accused was present in that place. But many persons gathered there. He has testified that Beena Palo-

¶163

P.W.10, Laxmi Narayan Mohanty, P.W.15, Bisu Mohanty (not examined), Banamali Mohanty, (not examined) amongst others.

¶164

53. Presence of P.W.12, Duryodhan Nayak in the immediate aftermath of the occurrence has been stated by P.W.10. P.W.12 testified in the trial that on 25.10.2003 at about 2 p.m., one Pradeep Mohanty came to him and informed that the appellant and the co-accused had assaulted Bhagirathi Nahak by means of a stone in front of the house of Bhagaban Pahan at Beguniapada. He rushed to that spot and found that Bhagirathi Nahak was still lying there.. When he arrived nearby the spot, he saw Rabindra Nayak (the co-accused) and the appellant were leaving the spot by a cycle. Thereafter, he made the following

¶165

statement:

¶166

“I found injury on the left side head of Bhagirathi Nahak and blood was coming from his head. Many other persons were present at the spot. Near the spot cycle, one pair chappal, a stone with blood stained and one gamucha (khurda gamucha) stained with blood (sic) was lying. Bina Palo, Laxmi Narayan, Banamali Mohanty and others were present near the spot. I along with others shifted the injured Bhagirathi to Khallikote hospital. After primary treatment doctor of Khallikote hospital advised us to go to the injured to Berhampur hospital for his better treatment. So we took him to Berhampur hospital.”

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54. In the cross-examination, he did not deviate from the statement he

¶170

made in the examination in chief and he was consistent about his statements. However, he has stated that Beena Palo, P.W.10, Laxmi Narayan Mohanty, P.W.15 and others took the injured to the hospital. It is obvious from his testimony that he did not see any part of the transaction of crime.

¶171

55. P.W.13, Pradeep Mohanty did not support the prosecution case and for that reason, he was allowed to be cross-examined by the prosecution. In such cross-examination, he has admitted that he had stated to the Police that on 25.10.2003 at about 2 p.m., while he was returning from the Beguniapada market towards his village by a cycle, the deceased was assaulted by the appellant and the co-accused.

¶172

56. P.W.13 has stated in the trial that he had informed Laxmi Narayan Mohanty, P.W.15 and Beena Palo, P.W.10. and P.W.14, Ranknath Jena. We have noted that P.W.13 has categorically stated that

¶173

he saw the appellant, Kumar Dakua and the co-accused (Rabindra Nayak) tying the neck of Bhagirathi Nahak by means of a gamucha and dragging him. As a result, Bhagirathi Nahak fell down. After he fell down, Kumar Dakua (the appellant) tightened gamucha around his neck by applying force.

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57. P.W.14 has testified in the trial and stated that initially he did not

¶177

know the name of the appellant, but on the day of incident, he came to know the name of the appellant is Kumar Dakua from the persons who gathered in the place of occurrence. P.W.14 has categorically stated as follows:

¶178

“I have not heard any altercation between the accused persons and the deceased. By the time I reached the spot, the accused persons fled away and the incident was already over.”

¶179

58. P.W.14 has further unambiguously stated that no other persons

¶180

had intervened in the matter. The appellant and the co-accused left the spot towards Beguniapada through the field. He has categorically stated in the cross-examination that he had not seen the accused persons tying gamucha around the neck of the deceased, Bhagirathi Nahak. Thereafter, he had stated that the appellant had tied the neck of the deceased by gamucha, while he was lying on the ground and at that position, Rabindra Nayak hammered the stone on the head of Bhagirathi Nahak. He has denied to have made a false statement for implicating the appellant or the co-accused.

¶181

59. P.W.15, Laxmi Narayan Mohanty has testified in the trial that Pradeep Mohanty, P.W.13 came to them and informed that the appellant and Rabindra Nayak had been assaulting the deceased, Bhagirathi Nahak in front of the house of Bhagaban Pahan of Beguniapada. He had

¶182

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rushed to the spot by his bicycle. He found that the deceased had bleeding injuries on the left side of his head. He was unconscious at that time. He has further stated that he saw Beena Palo, P.W.10, Duryodhan Nayak, P.W.12 and Biswanath Mohanty, (not examined in the trial) and others at the place of occurrence. They shifted the deceased to the Khallikote medical for his treatment. On the medical advice, the deceased was shifted to the Berhampur Medical College & Hospital where the deceased breathed his last. P.W.15 had given his opinion in respect of the cause of death of Bhagirathi Nahak in the post-mortem examination report, (Ext.8). The Police arranged to send the dead body of Bhagirathi Nahak for post mortem examination with the dead body challan (Ext.3). In the said dead body challan, the signature of P.W.15 is available.

¶185

60. According to P.W.15, Beena Palo, P.W.10 was present on the spot before they arrived. But he could not state in the trial the names of the other villagers who were present, when P.W.15 went there.

¶186

61. P.W.16, Gangadhar Bhuyan was posted as S.I. of Police on 25.10.2003. According to him, one Talapada Acharjya of Kalamula

¶187

came to the Out Post and orally reported the occurrence at 2 p.m. According to Talapada Acharjya, one Rabi Nayak and Kumar Dakua

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(the appellant) of Khandianai assaulted Bhagirathi Nahak by means of a stone and the deceased received a fatal injury on his head. The said information was entered in the Station Diary.

¶191

62. P.W.16 carried out the investigation and in the trial, gave a brief narrative of how he had conducted the investigation. He examined the witnesses, sent the dead body for post mortem examination and upon visit of the place of occurrence, he prepared the spot map, Ext.11. He had also seized the stone, earth containing blood and sample earth, one blood stained khurda gamucha, one BSA cycle, one pair chappal from the spot in presence of the witnesses on preparing the seizure list, Ext.5. He had also collected the post mortem examination report from the F.M.T. Medical College, Berhampur. He had seized the dry blood on a gauge for examination. Some of the seized articles were released following the due procedure. One blood stained half pant was seized from the accused, Rabindra Nayak by preparing the seizure list (Ext.13).

¶192

P.W.16 had also seized the lungi, which was in the wearing of the appellant by preparing the seizure list, Ext.14. The scalp hair and blood of the deceased were collected for chemical examination and those were sent to the Forensic Examination by covering notes, Exts.15 & 16.

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63. P.W.17, Dr. Sachidananda Mohanty conducted the Post Mortem

¶196

examination over the dead body of Bhagirathi Nahak on requisition on

¶197

26.10.2003. He found the following external injuries:

¶198

“(i) Abraded contusion of size 23 c.m. x 14 c.m. present on the antero lateral CS surface of left face extending superiorily from fronto temporal emience inferirily up to left rams of mendible, medially up to outer side of left eye and laterially 2 c.m. behind the left ear, over which two laterated wound found present (a) a Semicircular stiched laterated wound of length 21 c.m. with intact seven lylin stiches found present and (b) the left ear cross and laterated. (2) Abraded contusion of size 5 c.m. x 3 c.m. present only posterior aspect of left shoulder.

¶199

(iii) Obliquely present abraded contusion of size 3 c.m. x 1.5 c.m. on the postro laterial aspect of right neck at its root.

¶200

(iv) Abraded contusion of size 3 c.m. x 1 c.m. present on the right shoulder at its back.

¶201

(v) Punctured laterated wound of size 2 c.m. x 1.5 c.m. x muscle deep present on the right malar area.”

¶202

64. P.W.17 has categorically and on the basis of the Post Mortem examination report, Ext.18, stated in the trial that on dissection, he found the following internal injuries:

¶203

“(i) On eploration of external no.i(a) it was laterated wound of size 21 c.m. x 4 c.m. x brain deep date ted its surrounding subssalpal haemotama mostly the whole of enterial portion, so also subccalpal hemmotama on right fronto terral region with contusion of temporallyes muscle could be detected. The under nith frontal bone on left side found fracture into three pieces with separation of whole of cornal sucture. The meninges found contused lacerated on left side with contusion laceration of fronto partial lope of brain on left side.

¶204

(ii) Sub dural haemotama on right tempro occipital region.

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Opinion – Above mentioned injuries were ante mortem and homicidal in nature. (ii) External injury no.i including its corresponding internal injury and its counter coup injuries caused by single blow given by a multifaced hard irregular object like stone while rest of the injuries are

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caused are caused by hard and blunt coma. (iii) All the injuries in combination and external injury no.i including its corresponding internal injury are fatal to cause death or ordinary course of nature.”

¶209

65. P.W.17 has attributed the death of the deceased to the head

¶210

injury. It is apparent from his opinion that the external injury No.1 including its corresponding internal injuries were caused by single blow given by hard and irregular object like stone. In the trial, he was shown the seized stone which was suspected to have used to hit on the head of

¶211

the deceased.

¶212

66. P.W.17 opined that the injury as detected on the person of the deceased could be done by such type of stone, M.O.V.

¶213

67. On appreciation of the evidence as led by the prosecution, there cannot be any amount of doubt that the appellant tied the gamucha around the neck of the deceased and pulled him on the ground and thereafter, he had tightened the said gamucha. At that time, Rabindra Nayak @ Rabi by taking a stone from the road side, hammered on his head and as a result the deceased died after a few hours in the hospital.

¶214

68. The expert opinion in respect of the death is very clear that the single blow on the head made by Rabindra Nayak had caused the death of the deceased.

¶215

69. Mr. Zafarulla, learned counsel for the appellant has submitted that P.Ws. 10 & 14 cannot be believed because both the witnesses are the

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chance witnesses. That apart, there are serious in-congruity in their testimonies.

¶219

70. P.W.10 has stated that when Bhagirathi Nahak (the deceased)

¶220

asked them why they had dashed his bi-cycle, the accused Kumar Dakua and Rabindra Nayak dragged him by means of a Khurda gamucha, tied around his neck, and the deceased, Bhagirathi fell down.

¶221

Kumar had tied the victim’s neck by means of the said gamucha. After Bhagirathi fell down, Rabindra Nayak hammered on his head by a big stone. As result of such assault, Bhagirathi Nahak (the deceased) sustained serious and bleeding injury.

¶222

71. P.W.14, who has claimed to be the eye witness of the occurrence,

¶223

did not corroborate this part graphically. Even there is surface difference in the description, as stated by Mr. Zafarulla, learned counsel, P.W.14 has claimed to have witnessed the deceased returning home

¶224

from Beguniapada market and at that time, the appellant and the co-

¶225

accused dashed his bi-cycle from his behind. At that time, there was an exchange of hot words and thereafter, Bhagirathi Nahak was dragged by tying a Khurda gamucha. After a while, he fell down on the ground and

¶226

blood was coming out from his mouth. At that time, Rabi Nayak hammered by a stone on the head of Bhagirathi Nahak.

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72. For tying the neck by gamucha, the criminal liability is to be saddled squarely with the appellant.

¶230

73. We are in complete disagreement with Mr. Zafarulla, learned counsel that the statements of P.Ws. 10 & 14 as made in the trial are not creditworthy. To a greater extent, their statements corroborate each other.

¶231

74. If the provision of Section-34 is not imported then the act of the

¶232

appellant will come under Section-324, as he has used the gamucha as the weapon of offence which might have caused death the way it was

¶233

used. The said gamucha has been used in a manner which is known as deleterious to the human body. That might have strangulated the deceased. That apart, the very conduct could have been brought under Section-307 of the IPC, if the prosecution had proved intention to kill. In that event, the appellant would have been punished with imprisonment for a term which might extend to ten years with fine. But

¶234

we do not find there was any intention of the appellant to kill the deceased. Out of a sudden anger, the appellant did commit the said offence. Unless the act of Rabindra Nayak is pained by common intention, the appellant cannot be charged under Section-302 of the IPC.

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75. It is evident that as the co-accused hammered on the head of the

¶238

deceased by a stone, it had caused fatal consequence. The deceased succumbed to death for injury caused by assault by the stone.

¶239

Therefore, the pertinent question on which the sustainability of

¶240

the conviction depends is whether the finding of the trial judge that

¶241

during the transaction of offence, the common intention was formed.

¶242

76. Mr. Katikia, learned Addl. Government Advocate has also supported that finding.

¶243

77. The decision of the apex court in Shreekantiah Ramayya Munipalli (supra) is still considered as good law. It has been laid down therein that for importing Section-34 of the IPC, there must be some sort of preliminary planning which may or may not be at the scene of

¶244

crime but which may have taken place long beforehand. Actual physical presence at the scene of occurrence coupled with actual participation may not be required which shall essentially be proved that the act is done with intention of assisting in furtherance of the common intention of them all.

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78. Therefore, the fundamental test or the objective test is that whether there was a preliminary plan or whether there was a prearranged plan for furtherance of the common intention for committing an offence.

¶248

79. P.W.10 has clearly stated that when Bhagirathi Nahak challenged

¶249

the appellant and his co-accused why they had dashed his bi-cycle, they attacked him being provoked. P.Ws. 10 & 14 did not tell about the hot altercation, but they have given an indication that after the bi-cycle of

¶250

the appellant and the co-accused dashed the bi-cycle of the deceased from behind, the deceased asked them why they had done so and immediately thereafter, the appellant tied his neck by khurda gamucha and dragged him. For the criminal force as applied, the appellant fell down on the ground and in that moment, a sudden fight broke out. The co-accused struck on the head by a stone and according to P.W.17, the said blow was fatal for the deceased. There is no evidentiary element to hold that there was common intention before beginning of the transaction of the offence or there was any meeting of the mind during the transaction of offence.

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80. As the individual act of the appellant and the co-accused had no nexus, the provision of Section-34 of the IPC cannot be applied. Hence, the finding of the trial judge that the common intention was formed in the course of transaction of offence is in our considered view, unsustainable for absence of any legal evidence.

¶254

81. Accordingly, we set-aside the conviction of the appellant under Section-302/34 of the IPC. But we find sufficient materials to hold the appellant guilty for committing the offence punishable under Section324 of the IPC. Without framing any formal charge and on taking recourse to Section-222 of the Cr.P.C, we convict the appellant under Section-324 of the IPC inasmuch as the offence punishable under Section-324 of the IPC is cognate to the offence punishable under Section-302 of the IPC and the said offence is also minor to the offence punishable under Section-302 of the IPC. As consequence of the conviction under Section-324 of the IPC, we sentence the appellant to suffer Rigorous Imprisonment for three years.

¶255

82. In the result, the impugned judgment and order dated 30.04.2005

¶256

is set-aside subject to the above finding and conviction with sentence therefrom.

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83. Hence, the appeal is partly allowed.

¶260

84. LCRs. if any, lying with the Registry shall be returned forthwith.

¶261

(S. Talapatra) Judge

¶262

Savitri Ratho, J. I agree.
(Savitri Ratho)
Judge
Orissa High Court, Cuttack.
The 17 th May, 2023/Subhasis Mohanty, P.A.

¶263

Signature Not Verified

¶264

Digitally Signed Signed by: SUBHASIS MOHANTY Designation: P.A. I/C Secretary Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 25-Sep-2023 18:51:04

¶265

Page 36 of 36

Kumar Dakua v. State

Case brief

What is this about?

What did the court decide?

Kumar Dakua v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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