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