Jadu ' Ghanashyam Patel and Others vs State of Orissa

S. Acharya, J.—The Appellants stand convicted u/s 302/34, Indian Penal Code and they have been sentenced thereunder to under go R.I. for life.

The prosecution case, in short, is that at about 7-30 A.M. on 26-7-1975 while Jagannath, the deceased, was coming back to his house from his paddy lands and was passing in front of the house of accused Ghanashyam, the three Appellants, who bad concealed themselves in the cow-shed of accused Ghanashyam '' Jade, suddenly came out and assaulted Jagannath. At first accused Riseswar and Gokul dealt lathi blows on Jagannath, and when the latter fell down on the ground, accused Ghanashyam with the axe, M.O.I, dealt blows on the head and legs of Jagannath. Thereafter they ran away from that place. Jagannath, being seriously injured was immediately removed to the hospital at Jharsuguda and be succumbed to the injuries in that Hospital at about 2.30 p.m. on the date of occurrence. F.I.R., Ext. 2, was lodged at the Jharsuguda Police Station by Kastu Charan Patel, P.W. 9, the brother-in-law of Jagannath. The accused Biseswar prior to the lodging of the F.I.R. had lodged a station diary Entry, ext. 14, about the occurrence.

Defence plea is one of total denial of their complicity with the occurrence.

Along with the Appellants, Bhawani Dei, wife of Appellant Ghanashyam Patel, was also charged for an offence u/s 201, Indian Penal Code on the allegation that she concealed the axe. M.O.I. which was used by her husband in dealing blows on the deceased.

Deceased Jagannath was the younger brother of accused Jadu '' Ghanashyam. Appellant Biseswar is the son of Appellant Ghanashyam. Appellant Gokul, Pin was the field servant of accused Ghanashyam at the time of occurrence. Jagannath and Ghanashyam were separate in mess, residence and property having their houses a little apart from each other. There was some dispute between the the two brothers over a piece of land named Pulia duli. A panchayat had been convened in the village on 20-7-1975 for the settlement of the said dispute, but the dispute bad not been settled till the date of occurrence. It is alleged that in the morning of the date of occurrence, the deceased Jagannath had asked the field servants of accused Ghanashyam to desist from ploughing the Pulia duli land, so the field servants stopped ploughing the said land and they came away from that place and informed Ghanashyam about the same.

P.W. 10 an post-mortem examination on the dead body of Jagannath found the following injuries:

(1) one cut wound placed antero-posteriorly over the left parietal region of the scalp, three inches above the left pinna. Size of the wound was 3" x 2" x seal p deep;

(2) one cut wound-placed obliquely over the right parieto occipital scalp. The size was 4" x 2" x scalp deep ;

(3) one cut wound - placed antero - posteriorly over the right parieto-temporal scalp. The size of the wound was 3" x 11/2" x scalp deep;

(4) one cut wound of 11/2" x 1/2" below the right pinna between the mastoid process and angle of right mandible;

(5) one incised wound - 2" x 1/2" x 1/2" - on the right side of the upper lip below the nose;

(6) two abrasions - on the posterior aspect of the right shoulder joint over the ,acromion process;

(7) abrasions - over the anterior aspect of the left knee;

(8) bruise over the middle of the right arm;

(9) huge cut wound through and through in the middle of the right leg cutting all the structures of the leg leading to amputation of the right leg with profuse bleeding; and

(10) huge cut wound - through and through cutting all the layers of the leg in the lower one-third, one inch above the left ankle joint leading to amputation of the left foot with profuse bleeding.

On dissession of injury No. 8, P.W. 10 found comminuted fracture of the right humerus in the middle with haematoma around the bone and laceration of the muscles of the upper arm. He has opined that all the injuries were ante-mortem in nature and that injury Nos. 1 to 5,9 and 10 were caused by a sharp cutting weapon like the Tangia, M.O.I, and injury No. 8 might have been caused by the and of the Lathis like M.Os. II and III, or with the blunt side of an axe. He further opined that injury Nos. 1 to 5. 8. 9 and 10 were sufficient in the ordinary course of nature to cause the death of the deceased. On the doctor''s (P.W. 10) evidence, the Court below has rightly arrived at the finding that the death of the deceased was homicidal. Mr. Das, the learned Counsel for the Appellants, has not challenged this aspect of the case.

P.Ws. 1 and 14 have stated that there was a dispute between accused Ghanashyam and Biseswar on one side and the deceased Jagannath on the other regarding the Pulia-duli land, and that to settle the said dispute a Panchayati had been held on 20-7-1975 in the village and as the said dispute could not be settled on that date, the matter was postponed to be decided by the Panchayat on a subsequent dated. P.W. 7 has testified to the fact that in the early morning of the date of occurrence the deceased dissuaded the field servants of accused Ghanashyam not to plough the Pulia-duli land and accordingly the field servants stopped ploughing the said land. The evidence of P.Ws. 1, 14 and 17 to the above effect has not been assailed successfully by the defence. Their evidence to the above effect affords a motive for the crime.

P.Ws. 7, 8, 13 and 14 are the eye witnesses to the occurrence. Before I deal with the evidence of P.W. 7, I would better deal with the testimony of P.Ws. 8. 13 and 14. P.W. 8 is the brother-in-law of accused Ghanashyam, being the brother of Ghanashyam''s first wife who had died by the time of the occurrence. Nothing has even been suggested to P.W. 8. much less elicited from him, to show that he any way was ill disposed towards any of the accused persons so as to foist such a false case against any of them. Apart from other things, he has stated that while he was unyoking the bullocks in front of his house by about 10 a.m. on the date of occurrence, he at first saw accused Biseswar and Gokul assaulting the deceased Jagannath from behind with Lathis. On receiving Lathi blows from these two accused persons deceased Jagannath fell down on the ground and thereafter accused Gokul also dealt a few Lathi blows on Jagannath. After all that, accused Jadu '' Ghanashyam came to the place of occurrence with a Budia (small axe) in his hand. On seeing this, he (P.W. 8) went inside his house and did not see what Ghanashyam did with his Budia. His statement in cross-examination that accused Gokul dealt Lathi blows on Jagannath only after he fen down on the ground does not devalue his testimony, as the witness, deposing after a long time is prone to commit mistakes regarding the sequence in which accused Biseswar and Gokul dealt Lathi blows on the deceased. His evidence that at first accused Gokul and Biseswar dealt Lathi ,blows on the deceased and after he fell down on the ground accused Ghanashyam appeared on the scene with an axe in his hand has not been assailed in any manner. His evidence to the above effect also gets corroboration on material particulars from the evidence of the other eye witnesses and the lathi injuries found by P.W. 10, the doctor, on the dead body of Jagannath. We see no reason to doubt his testimony to the above effect.

P.W. 13 is the daughter of the deceased. In the morning of the date of occurrence while she was going to take her bath in the village ''Bundh'' she heard her father raising an alarm. On hearing that, she looked back and found accused Biseswar and Gokul assaulting her father with Lathis. Thereafter Ghanashyam came to the scene with a Budia in his hand and he dealt blows with that Budia on the legs and head of her father. After all that, all the accused persons fled away from that place. She was subjected to a lengthy cross-examination, but nothing material could be elicited from her to cast any doubt on her testimony. Her evidence, so far as possible, gets corroboration from the evidence of P.Ws. 8 and 14, and we have absolutely no hesitation in accepting her evidence in toto.

P.W. 14 is the widow of the deceased. She has stated that she was inside her house when Gokula and Biseswar dealt lathi blows on her husband and so she did not witness that part of the occurrence. But when she came out of her house on hearing the alarm raised by her husband, she saw these two accused persons with Lathis in their hands near the place of occurrence, and at that time she saw accused Ghanashyam dealing Tangia blows on Jagannath. On seeing this, she raised alarm and ran towards her husband. Then the accused persons ran away from the place of occurrence. Nothing substantial could be elicited from her in cross-examination to create any doubt whatsoever about the veracity of her testimony. Moreover, her evidence inspires confidence as it gets corroboration on all possible details from the evidence of P.Ws. 8 and 13; she has not tried even with an inkling to state anything which she had not actually seen, and has scrupulously avoided exaggerations and embellishments. She in her examination-in-chief itself has stated that when she came out of her house she saw accused Biseswar and Gokul standing at the place of occurrence a little away from her husband, who was then lying injured at that place. In a very straightforward manner she has stated that she did not see accused Biseswar and Gokul dealing any blow on her husband.

The evidence of P.Ws. 8, 13 and 14 about the occurrence is very convincing, and one can confidently base one''s-finding on their evidence along without taking into consideration the evidence of P.W. 7. On their evidence we have absolutely no doubt that accused Biseswar and Gokul at first assaulted Jagannath with Lathis on different parts of his body as a result of which he fell down on the ground. Soon thereafter accused Ghanashyam appeared on the scene, and he with the Budia (M.O.I) dealt several blows on the head and legs of Jagannath when be was lying injured at that place.

The evidence of P.W. 7 regarding the occurrence is not consistent with the convincing evidence of P.Ws. 8, 13 and 14. He has made developments, exaggerations and embellishments in his deposition, which does not get corroboration from any other source. He is the only person whose statement has been recorded u/s 164, Code of Criminal Procedure. He was arrayed as an accused in the F.I.R. and it was suggested to him that he had been detained at the police station in connection with this case. His evidence does not inspire confidence and we shall better not rely on him. In view of the above facts, the suggestion of the learned Counsel for the Appellants that P.W. 7 was out to depose as desired by the police to save himself from being prosecuted in this case cannot be lightly brushed aside.

P.W. 10 has stated that the deceased was admitted into the Jharsuguda Hospital in an injured condition at about 11-20 a.m. on 26-7-1975. At that time P.W. 10 found the above mentioned ten injuries on his body. He has opined that so far as injuries 1 to 5 and 9 and 10 are concerned, they appear to have been caused by a sharp cutting weapon like M.O.I. With regard to injury No. 8, he has stated that that injury could have been caused by a hard and blunt weapon like a Lathi or by the blunt side of an axe. He has also stated that injury Nos. 1 to 5, 8, 9 and 10 were sufficient in the ordinary course of nature to cause the death of the deceased, and that the injured succumbed to the said injuries at about 2-30 p.m. in the hospital. On the evidence of P.Ws. 8, 13 and 14 it is established beyond reasonable doubt that it was accused Ghanashyam who dealt the axe blows on the head and legs of the deceased. From the manner in which the axe .blows were inflicted by Ghanashyam on the head and legs of the deceased and the nature of those injuries, there is no doubt that his case comes clearly within the 1st or the 3rd clause of Section 300, Indian Penal Code. Accordingly he is liable for an offence u/s 302, Indian Penal Code. This accused was defended by a lawyer. P.Ws. 8, 13 and 14, in their deposition recorded in the presence of this accused, clearly attributed all the axe injuries on the deceased to this accused and to none else. Questions on this aspect were put to this accused by the trial Court. So this accused knew full well that he was made responsible for all the axe injuries on the deceased. On the above, facts, the conviction of the accused u/s 302/34, Indian Penal. Code can easily be converted to one u/s 302, Indian Penal Code without causing any prejudice whatsoever to this accused.

Now it is to be seen whether the other two accused persons, namely Biseswar and Gokul, can be held constructively liable u/s 34, Indian Penal Code for the aforesaid offence. In order to hold them constructively liable u/s 34. Indian Penal Code for the offence committed by accused Ghanashyam it must be proved that they shared the intention of accused Ghanashyam to commit the murder of the deceased. If it is found that they were not cognizant of the above intention of Ghanashyam but they only shared the common intention of assaulting the deceased then they cannot be held guilty of the offence of murder committed by Ghanashyam. Several persons may simultaneously attack a man, and each one of them may inflict separate blows on the victim, but if an of them did not share the common intention to kill the victim, then those who did not share that common intention cannot be convicted u/s 34, Indian Penal Code for the act of killing the victim committed by some one of them. "Common intention" is an intention to commit the crime actually committed, and each accused person can be convicted of that crime only if he has participated in the commission of the offence with the intention to commit the actual crime which was committed. The inference of common intention should not be reached unless it is a necessary inference deducible from the circumstances of the case. To constitute "common intention" it is necessary that the intention of each one of them was known to the rest of them and was shared by them.

In the decision reported in Hardev Singh and Another Vs. The State of Punjab, , it has been held that

The common intention must be to commit the particular crime although the actual crime may be committed by anyone sharing the common intention. Then only others can be held to be guilty.

In the present case before us it is established on the evidence of P.Ws. 8, 13 and 14 that accused Biseswar and Gokul came out of the house of Ghanashyam with Lathis in their hands and assaulted Jagannath (the deceased) with their Lathis while he was passing on the village road. After he was assaulted in the aforesaid manner and after he fell down on the ground, accused Ghanashyam came out of his house and appeared on the scene. He then dealt blows on the head and legs of the deceased. At that time, as stated by P.Ws. 13 and 14 in their examination in chief itself, accused Biseswar and Gokul were standing away from the deceased and they did not take any part whatsoever when the deceased was being assaulted by Ghanashyam. There is no convincing evidence or material on record on which it can be said that these two accused persons shared the intention of Ghanashyam to kill the deceased. The evidence of P.W. 7, that just prior to the occurrence he had seen all the three accused persons concealing themselves in the cow-shed of accused Ghanashyam and at that time accused Gokul and Biseswar had Lathis in their hands and accused Ghanashyam had a Tangia with him, Goes not get any corroboration from anything on record. In his statement under -Section 164, Code of Criminal Procedure he had not stated that fact. He has not given any convincing reason as to why and how he could see the accused persons so concealing themselves in the cow-shed of accused Ghanashyam. His evidence, for other reasons stated earlier in this judgment, also does not inspire confidence. On the above facts, and there being no convincing evidence that these two accused persons shared the intention of accused Ghanashyam to kill the deceased, these two accused persons cannot be held constructively guilty for an offence u/s 302, Indian Penal Code read with Section 34, Indian Penal Code. But on the consistent and satisfactory evidence of P.Ws. 8, 13 and 14, that these two accused -persons dealt Lathi blows on the deceased - which fact gets support from the Lathi injuries found on the dead body of the deceased by P.W. 10 - they can be held separately liable for their individual acts. Injury Nos. 6 and 7, as opined by P.W. 10, could have been caused by Lathis. There is nothing to show that these two injuries were grievous in nature. As P.W. 10 has stated that injury No. 8 could have been caused with a Lathi or with the blunt side of an axe, we would better not attribute this injury to these two accused persons. Therefore, on the evidence on record these two accused persons can be held guilty u/s 323, Indian Penal Code.

In the result, therefore, instead of the conviction of accused Ghanashyam u/s 302/34, Indian Penal Code, he is convicted u/s 302. Indian Penal Code and is sentenced thereunder to R.I. for life. The conviction of Appellants Gokul and Biseswar u/s 302/34,. Indian Penal Code and the sentence of R.I. passed against them thereunder are set aside, and instead, each of them is convicted u/s 323, Indian Penal Code and sentenced thereunder to undergo R.I. for one year. If these two accused persons are already in jail for a period of one year, then they be set at liberty forthwith.

The appeal is accordingly partly allowed.

J.K. Mohanty, J.

I agree.

Appeal partly allowed.