JUDGMENT
P.K. Patra, J.
1. The appellants in both the appeals have assailed the judgment dated 3.2.1992 passed by Shri. S.P.Acharya, First Additional Sessions Judge, Cuttack in Sessions Trial No. 172 of 1991. In Criminal Appeal No.65 of 1992 appellant Pravakar Rath alias Bikali Rath has been convicted under Section 302/109 of the Indian Penal Code (for short ‘IPO and sentenced to undergo rigorous imprisonment for life. In Jail Criminal Appeal No. 128 of 1992 appellants Jaganath Sahoo and Sukanta Sahoo have been convicted under Sections 302/34, IPC and 337/34, IPC and have been sentenced to undergo rigorous imprisonment for life on the first count and no separate sentence has been passed on the second count.
2. Prosecution case in brief may be stated as follows :
Jaganath Sahoo, appellant No. 1 in Jail Criminal Appeal No. 128 of 1992 is the father of Sukanta Sahoo, appellant No.2 in the said appeal. Pravakar Rath alias Bikali Rath, the appellant in Criminal Appeal No. 65 of 1992, is the neighbour of the appellants in the Jail Criminal Appeal and was serving as a teacher in a local school. Deceased Sadhu Charan Sahoo is the younger brother of appellant Jaganath Sahoo. The appellants and the deceased were residents of village Sovamul under Jagatsinghpur police station in the erstwhile undivided district of Cuttack. There was dispute between appellant Jagannath and the deceased over a cocoanut tree standing on their homestead land in front of the house of the deceased which had not been divided among the brothers though other landed properties had been divided. It is alleged that in the morning of 24.1.1990 deceased Sadhu called Abhinna Bhoi (P.W.6) to pluck cocoanuts from the aforesaid disputed tree. When P.W.6 proceeded to pluck cocoanuts appellant Jaganath, Sukanta and another son of appellant Jagannath. namely, Hemanta, who has absconded after the occurrence; protested him and hence P.W.6 could not pluck cocoanuts from the disputed tree though he plucked cocoanuts from other trees standing on the Bari of the deceased. At that time appellant Pravakar Rath alias Bikali Rath was called to the spot by the other appellants for intervention. It is further alleged that after a while when the deceased was proceeding on the village lane towards a well to take bath, appellants Jaganath Sahoo. Sukanta Sahoo and the absconder accused Hemanta obstructed him and at the instigation of appellant Pravakar, appellant Sukanta dealt a blow by means of a TADA (bamboo stick) on the head of the deceased, as a result of which he fell down on the ground and appellants Jagannath and his other son Hemanta also dealt blows by means of lathis on the deceased while he was laying down. While the family members of the deceased reached the spot for intervention, the appellants pelted brickbats as a result of which P.Ws. 1 and 8, sons of the deceased, sustained injuries. The deceased was removed to the Jagatsinghpur Sub-divisional Hospital where he was declared dead. P.W.1 lodged FIR (Ext.1) at the Jagatsinghpur Police Station. P.W.I 1, the Junior S.I. of the said Police Station, in the absence of the Officer-in-charge registered the case and took up investigation. During investigation he proceeded to the spot, examined the informant, and the witnesses, held inquest over the dead body at the hospital, sent the dead-body for post-mortem examination and seized the blood-stained earth from the spot as also some broken brickbats. He also seized the weapon of offence, i.e. a bamboo stick (M.O.I) on production by the Gramrakshi of the village. He arrested the three appellants and forwarded them to Court in custody. He could not arrest the other accused Hemanta in spite of his best efforts. After completion of investigation he submitted charge-sheet against the three appellants showing the fourth accused Hemanta as an absconder.
Appellants Jagannath and Sukanta were jointly charged under Section 337/34, IPC and appellant Sukanta was separately charged under Section 302, IPC; whereas appellant Jagannath ws separately charged under Section 302/34, IPC. Appellant Pravakar was charged under Section 302/109, IPC and all the appellants stood their trial.
3.The appellants pleaded not guilty to the charge and their plea was one of denial. According to them they have been falsely implicated by the informant.
4. To bring home the charge against the appellants, prosecution has examined eleven witnesses in all. P.W.I, a son of the deceased, an eye-witness to the occurrence who had lodged the FIR at the police station P.W.8 is a minor son of the deceased who was injured due to pelting of brickbats by the appellants. P.Ws. 2 and 3 were witnesses to the seizure. P.Ws. 4, 6 and 7 are co-villagers of the appellants who have been examined as eye-witnesses to the occurrence. P.W.5 is the Gramrakshi of the village who collected the weapon of offence, i.e. ‘TADA’ (M.O.I) lying near the well being pointed out by P.W.I and produced the same before the investigating officer. P.W.9 is the medical officer who medically examined P.Ws 1 and 8, P.W. 10 is the medical officer who conducted post-mortem examination over the dead-body of the deceased and submitted his report Ext.7. He also examined M.O.I and opined that the injuries on the deceased could have been caused by M.O.I. P.W. 11 is the investigating officer.
5. The medical officer P.W. 10 who conducted the post-mortem examination over the dead-body of the deceased on 24.1.1990 at 4. p.m. found the following injuries :
“External injuries –
(1) Bruise 2″ x 1/2″ situated in the left leg below the knee joint, and
(2) Cut injury of scalp nearly 3″ x 1/2″ x bone deep situated nearly 1″ away from mid-sagital line to left in pariete temporal portion of skull. Bleeding from the wound present.
“Internal injuries –
(1) Fracture of skull bone in left parietal portion starting from mid-sagital line towards temporal portion in transverse way nearly 1″ away from mid-line, and
(2) A big size subeural haematoma spreading from left parietal to temporal portion of the membrane. The haematoma involves about half portion of the left parietal and temporal portion of the brain matter.”
According to P.W.10 the injuries were anti-mortem in nature and might be possible by the TADA (M.O.I) and the injuries were sufficient in ordinary course of nature to cause death of the deceased and the cause of death of the deceased was due to shock following internal haemorrhage in cranial cavity.Ext.7 is the post-mortem report and Ext.8 is the reply of P.W. 10 to the query of the investigating officer after examination of the weapon of offence (M.O.I). Thus, it is evident from the medical evidence that the death of the deceased was homicidal in nature.
6. Relying on the statements of P.Ws.1, 4, 6 and 7, the learned Additional Sessions Judge has come to the finding that at the instigation of Pravakar, the appellant in Criminal Appeal No.65 of 1992, Sukanta, appellant No.2 in Jail Criminal Appeal No. 128 of 1992, dealt a blow with the TADA (M.O.I) on the head of the deceased, as a result of which the deceased fell down and thereafter Jagannath, appellant No. 1 in the Jail Criminal Appeal, and the absconder accused Hemanta dealt blows with sticks on the body of the deceased and the deceased succumbed to the injuries and accordingly he convicted the appellants.
7. Learned counsel for appellant Pravakar strenuously contended that the learned Addl. Sessions Judge has not been able to appreciated the evidence on record properly and has come to the erroneous finding that at the instigation of appellant Pravakar the deceased was assaulted by the other appellants. The contention requires careful consideration.
8. In the FIR (Ext.1) P.W.I stated that when his father was going to take bath at the well in front of his house, appellants Jagannath and Sukanta as also the absconder accused Hemanta being armed with lathis obstructed him and at that time appellant Pravakar said in a loud voice “SALAKU BADEI MARIDIA, TAPARE KATHABARTA.” Hearing this, appellant Sukanta dealt a blow with a bamboo stick on the head of the deceased with force as a result of which the deceased fell down and thereafter appellant Jagannath and his son Hemanta dealt two blows on the deceased with sticks. It is alleged by the prosecution that appellant Pravakar who was serving as a school teacher had purchased a portion of the disputed land on which the cocoanut tree was standing from appellant Jagannath for a consideration of Rs. 1,500.00 under the sale deed Ext. 12 dated 25.10.1989 and therefore he was called to the spot by appellant Jaganntah when the deceased engaged P.W.6 to pluck cocoanut from that tree. It is also alleged that appellant Pravakar along with other appellants prohibited P.W.6 from plucking cocoanuts and also obstructed the deceased while he was going to take bath at the well situated in front of his house. In the above circumstances it is to be examined whether appellant Pravakar abetted the offence committed by the other appellants.
9. The informant PW-1 has been consistent in disclosing the prosecution case stated in the FIR. P.W.4 who claims to have rushed to the place of occurrence from his thrashing floor at a distance of about 100 to 50 cubits and to have witnessed the occurrence standing at a distance of 20 to 25 cubits has not stated about the instigation by appellant Pravakar to the other appellants to do away with the life of the deceased, though he has stated that appellant Pravakar was present near the spot. P.W.6 has stated that the deceased called him at about 7 a.m. to pluck cocoanuts from his trees and when he tried to climb the tree standing in front of the house of the deceased, he was restrained by appellants Jagannath, Sukanta and the absconder accused Hemanta as also by appellant Pravakar who claimed to have purchased that land. Thereafter, as directed by the deceased, he went to the Bari and plucked cocoanuts from other trees. He and P.W.I collected the cocoanuts and brought the same to the verandah of the house of the deceased. After that he heard a Hulla from the spot and found appellant Jagannath and the absconder accused Hemanta armed with lathis. He has stated to have heard appellant Pravakar saying “SALAKU BADEI MARIDIA, PARE KATHABARTA” hearing which appellant Sukanta brought out a TADA from a platform near the spot and dealt a blow on the head of the deceased, as a result of which the deceased fell down on the ground with profuse bleeding and after that appellant Jagannath and his other son. the absconder accused Hemanta, dealt blows by means of lathis on the body of the deceased. In his statement in cross-examination P.W.6 has stated that Hemantai dealt a lathi blow over the left knee of the deceased and appellant Jagannath dealt two lathi blows on the back of the deceased and there was bleeding injury on the left knee whereas there was no bleeding injury on the back of the deceased. This statement of P.W.6 does not find corroboration from the medical evidence on record, inasmuch as the medical officer, P.W. 10 did not find any injury on the back of the deceased though he found one bruise on the left leg below the knee joint and one cut injury on the scale.
10. P.W.7, another eye-witness to the occurrence, has stated that the house of appellant Pravakar is adjacent to the houses of the deceased and appellant Jagannath. Appellant Pravakar was not pulling on well with the deceased as he had purchased a homestead land from appellant Jagannath prior to the occurrence and the said land stood recorded jointly in the names of appellant Jagannath and the deceased and that the said transaction was without the knowledge of the deceased. Regarding the occurrence. P.W.7 has stated that hearing a Hulla he went to the spot and stood at a distance of about 100 to 150 yards and heard appellant Pravakar saying “SALAKU BADAO, JA HEBA DEKHAJIBA”, hearing which appellant Sukanta broughtout a TADA from a platform and dealt a blow on the head of the deceased, as a result of which the deceased fell down on the ground. Thereafter appellant Jagannath and the absconder accused Hemanta dealt lathi blows on the body of the deceased, but he has not stated on which parts of the body of the deceased the blows were dealt. In his statement in cross-examination P.W.7 stated that there was a gathering of about 50 to 100 persons at the spot and that he found appellant Jagannath dealing one lathi blow over a leg of the deceased which is contradictory to the statement of P.W.6 He has also stated that the absconder accused Hemanta dealt one blow with lathi on the left leg of the deceased as a result of which there was bleeding which is also not consistent with the medical evidence on record. P.W.7 has also not stated before the investigating officer that appellant Pravakar instigated the other appellants saying “SALAKU BADAO, JA HEBA DEKHAJIBA’. It is also not consistent with the FIR. As stated by him, there was a gathering of about 50 to 100 persons at the spot and he was standing at a distance of about 100 to 150 yards from the spot and as such he could not have heard the utterance of appellant Pravakar, if any. Thus the statement of P.W.7 is not free from infirmity and inconsistency and it would be unsafe to place reliance on him.
11. Evidently the deceased and his son P.W.1 were not pulling on well with appellant Pravakar who allegedly purchased the disputed plot over which the cocoanut tree stood from appellant Jagannath under the sale deed Ext. 12. P.W.6 was a labourer engaged by the deceased to pluck cocoanuts from the tree standing on the disputed land. It was but natural on the part of the appellants to prevent P.W.6 from plucking cocoanuts from the disputed tree. A few minutes after the same, it is alleged by the prosecution that appellant Jagannath and his son, the absconder accused Hemanta, were armed with lathis whereas the other two appellants were unarmed and they obstructed the deceased while he was going to take bath at the well in front of his house. Had there been a conspiracy between the appellants to do away with the life of the deceased, all of them would have been armed with deadly weapons and all of them would have attacked the deceased. Instead, prosecution alleged that appellant Sukanta picked up a TADA from a nearby platform and dealt a blow on the head of the deceased and after he fell down, appellant Jagannath and the absconder accused Hemanta dealt blows with sticks over his body. As stated earlier, P.W.4 whose house is situated near the spot, rushed to the spot immediately after hearing hulla but he was not whispered a single word against appellant Pravakar except stating about his presence at the spot like other witnesses.
Appellant Pravakar is also a neighbour of the deceased and the other appellants. Had appellant Pravakar instigated the other appellants to do away with the life of the deceased, P.W.4 would not have hesitated to disclose the same before the police and in Court. Thus it is found that the statements of P.Ws.l and 6, being tainted with interestedness, cannot be safely relied upon and as stated earlier the statement of P.W.7 is also found to be incredible. The statement of P.W.4 who appears to be a truthful witness has not implicated appellant Pravakar to have instigated the other appellants and Hemanta to do away with the life of the deceased. Therefore the inevitable conclusion would be that the prosecution case against appellant Pravakar has not been established beyond all reasonable doubts and it cannot be held that he instigated the other appellants to do away with the life of the deceased. It is well settled that a person who instigates others to beat the deceased and they inflict several injuries on Kim resulting in his death cannot escape the liability for abetment of murder. The Explanation to Section 109 IPC provides that an act or offence is said to be committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment. But in the instant case, as discussed above, there is no cogent or convincing evidence on record that appellant Pravakar instigated the other appellants to do away with the life of the deceased. In the facts and circumstances of the case, it can be inferred, for the sake of argument, that appellant Pravakar might have intended to instigate the other appellants to merely give a beating to the deceased, but in that case also appellant Pravakar cannot be held guilty of abetment for murder caused by appellant Sukanta.
12. With regard to assault on the head of the deceased by appellant Sukanta by means of a TADA, picked up by him from a nearby platform, the statements of P.Ws.1, 4, 6 and 7 are consistent. Since there is no evidence on record that there was prior concert between the appellants and the evidence relating to assault on the deceased by appellant Jagannath and the absconder accused Hemanta is not acceptable in view of the discrepancies in the ocular testimony and the medical evidence on record, the only inevitable conclusion will be that appellant Sukanta picked up the TADA and dealt the blow on the head of the deceased at the spur of the moment due to altercation without any intention of causing death of the deceased, though he might have knowledge that such a blow was likely to cause the death of the deceased. Therefore, he cannot be held guilty of the charge under Section 302, IPC and instead he will be held guilty of the charge under Section 304, Part-II, IPC and ends of justice will be met if he is sentenced to undergo rigorous imprisonment for the period undergone.
13. So far as allegation of assault on the deceased by appellant Jagannath and the absconder accused Hemanta is concerned, the statements of P.Ws.1, 4, 6 and 7 are not consistent with each other and with the medical evidence on record. The absence of seizure of the lathis allegedly held by appellant Jaganntah and Hemanta will adversely affect the prosecution case. Where the TADA (M.O.I) could be recovered from the spot, there is nothing on record to show as to what happened to the sticks allegedly wielded by appellant Jagannath and his son Hemata. All the prosecution witnesses are silent on this score. For all the reasons stated above the charge under Section 302/34, IPC against appellant Jagannath cannot be sustained.
14. Regarding the charge under Section 337/34, IPC, learned Addl. Sessions Judge has not been able to appreciate the evidence properly and has held appellants Jagannath and Pravakar guilty of the said charge. It is alleged by the prosecution that when the mother and sisters of P.W. 1 came out of their house and tried to intervene, appellant Jagannath and Hemanta pelted brickbats at them, as a result of which P.Ws. 1 and | 8 were injured. But P.W.I has stated that the appellants pelted brickbats at his house and he has not stated that either he or his younger brother-P.W.8 was injured due to such brickating. Similarly P.W.8 is a child witness, has stated that due to brickbating he was injured on his left. knee. He is silent regarding any injury on P.W.I But the doctor P.W.9 , who examined P.Ws. 1 and 8 after about a month of the occurrence stated that he found an old scar mark on the right leg of P.W.8 as per Ext.5, but he did not find any visible injury on P.W.I as per Ext.6. So. the statement of P.W.8 is not consistent with the medical evidence on record. The statement of P.Ws.4, 6 and 7 on this score are not consistent with each other and reliance cannot be placed on them. Therefore, the charge under Section 337/34, IPC against appellants Jagannath and Sukanta cannot be sustained.
15. In view of the discussions made above, appellant Pravakar Rath aliasBikali Rath cannot be held guilty of the charge under Section 302/109, IPC, appellant Jagannath cannot be held guilty of the charge under Section 302/34, IPC and under Section 337/34, IPC and appellant Sukanta cannot be held guilty of the charge under Section 337/34, IPC and also under Section 302, IPC and his conviction under Section 302, IPC is to be modified to one under Section 304. Part-II, IPC.
16. In the result, Criminal Appeal No.65 of 1992 is allowed. The conviction of appellant Pravakar alias Bikali Rath under Section 302/109, IPC and the sentence passed thereunder are set aside and he is acquitted of the said charge.
Jail Criminal Appeal No. 128 of 1992 is allowed in part. The conviction of appellant Jagannath Sahoo under Section 302/34, IPC as well as under Section 337/34. IPC and the sentence passed against him are set aside and he is acquitted of the charge. He be set at liberty forthwith if his detention is not required in any other case.
The conviction of appellant Sukanta Sahoo under Section 302, IPC and the sentence passed thereunder are set aside and instead, he is convicted under Section 304, Part-II, IPC and sentenced to undergo rigorous imprisonment for the period undergone. His conviction under Section 337/34, IPC is set aside and he is acquitted of the said charge. He be set at liberty forthwith if his detention is not required in any other case.
R.K. Patra, J.
17. I agree.