JUDGMENT
B.K. Behera, J.
1. The appellants stood charged under Section 302 read with Section 34 of the Indian Penal Code (‘the Code’, for short) for having committed the murder of Khara Achuma (hereinafter described as ‘the deceased’) in furtherance of their common intention on Sept. 4, 1981 and under Section 201 read with Section 34 of the Code for having caused the evidence of murder to disappear in order to screen themselves from legal punishment. It was alleged that on the date of occurrence, while the deceased, the appellants with an absconding accused and P.W. 5 were returning from the market, they took, some liquor on the way and thereafter a quarrel ensued between the appellant Khara Locha and the deceased, his brother, over the cultivating possession of a piece of land whereafter the appellant Khara Locha dealt a blow on the head of the deceased who fell down and was assaulted by the other appellants and the absconding accused which resulted in his death. The appellants, it was alleged, tied the dead body and threw it into a river so that the evidence of commission of murder would disappear and this had been done to screen themselves from legal punishment.
2. To bring home the charges, the prosecution had examined sixteen witnesses of whom, P.Ws. 4, 5 and 12 had figured as witnesses to the occurrence. P.W. 5 is the cousin of the appellant Khara Locha and the deceased. The appellant Pangi Poi is the father-in-law, the appellant Pangi Madana is the grand-father-in-law, and the appellant Khara Locha is the cousin of the deceased. Mainly relying on the evidence of P.Ws. 4, 5 and 12, the learned trial Judge has held that both the charges have been substantiated
3. The finding of the trial Court that the death of the deceased was homicidal in nature has not been assailed on behalf of the appellant.
4. Mr. Padhi has contended for the appellants that P.Ws. 4, 5 and 12 had not disclosed about what they had claimed to have seen before anyone and had made belated disclosure in the course of investigation for this, their evidence ought to have been discarded. According to him, even accepting the entire case of the prosecution as true, the appellant Khara Locha could at best be attributed with the knowledge that by his act, he was likely to cause the death of the deceased and he could properly be convicted under Section 304, Part II of the Code and the other appellants could not be said to have shared the common intention with this appellant Khara Locha for commission of murder or culpable homicide not amounting to murder and they could at best be convicted under Section 323 of the Code for voluntarily causing hurt to the deceased. Mr. Padhi has not challenged the order of conviction under Section 201 read with Section 34 of the Code. We have heard the learned Additional Standing Counsel.
5. As would appear from the evidence of P.Ws. 4, 5 and 12, they were competent and natural witnesses being near the scene of occurrence. In fact, P.W. 5 had been accompanying the appellants and the deceased at the relevant time and was a co-villager of theirs. They have testified that the appellant Khara Locha dealt a blow on the head of the deceased The medical evidence would show that that was the only fatal injury on the person of the deceased. According to P.Ws. 4, 5 and 12, after the deceased fell down on receiving a lathi blow on his head dealt by the appellant Khara Locha, the other appellants and the absconding accused assaulted him by lathis. It would be seen from the medical evidence that besides the injury on his head, two bruises had been found on the person of the deceased which were not on vital parts. The evidence of P.Ws. 4, 5 and 12 is in consonance with the medical evidence.
6. As would appear from the evidence of P.Ws. 4, 5 and 12, they had not disclosed about what they had seen to anyone until the police officer came to the scene for the purpose of investigation. But they have given reasonable explanations as to why they did not make any disclosure earlier. According to P.Ws. 4 and 12, the appellant Khara Locha was of a notorious character and people of the locality were mortally afraid of him. P.W. 5 had testified that this appellant had threatened him with serious consequences if he made any disclosure. The evidence of P.Ws. 4, 5 and 12 with regard to the explanations offered by them has not been discredited in their cross-examination. As a matter of fact, this part of their evidence has not been challenged at all.
7. It would appear from the evidence of P.W. 15, the police officer who first took up the investigation, that he came to the scene for the purpose of investigation on September, 10, 1981 after he drew up a first information report with regard to a case of homicide on the completion of his enquiry into a report regarding unnatural death of the deceased and he had recorded the statements of P.Ws. 4, 5 and 12 on September 11, 1981. There had thus been no undue delay in the examination of the principal witnesses and they had disclosed the occurrence to the police officer after he came to the scene. In such circumstances, the evidence of these three witnesses is not to be discarded merely on the ground that they had not disclosed about what they had seen to anyone immediately after the occurrence.
8. We would accordingly accept the finding recorded by the trial Court that the appellant Khara Locha had dealt a lathi blow on the head of the deceased and that the other appellants had assaulted the deceased by means of lathis. As would be clear from the evidence of P.Ws. 4, 5 and 12, the occurrence had taken place in a flash. The appellants and the deceased had taken liquor on their way back from the market. There ensued a quarrel on their way and in the course of the quarrel, the appellant Khara Locha had dealt but one blow on the head of the deceased In such circumstances, it would be difficult to assume that the appellant Khara Locha had the intention of causing the death of the deceased and that with that intention, he had dealt the fatal blow. Nothing more could be attributed than that he had the knowledge that by his act, he was likely to cause the death of the deceased. The offence committed by him would therefore, come within the purview of Section 304, Part II of the Code.
9. If the other appellants had shared the common intention of causing the death of the deceased, they could have dealt some blows on vital parts of the deceased instead of dealing some blows on the back and the palm. It cannot reasonably be said that they had knowledge that by their acts, they were likely to cause the death of the deceased. Being close relations of the deceased they would not normally intend to cause the death of the deceased in the circumstances of the case. There are no materials to indicate that there had been any meeting of minds of the appellants and that there had been a pre-plan to cause the death of the deceased They could not, therefore, be held guilty for sharing any common intention with the appellant Khara Locha in assaulting the deceased to death. They could be punished for their individual acts which would come within the purview of Section 323 of the Code.
10. In the result, the appeal is allowed in part. The order of conviction recorded against the appellants under Section 302 read with Section 34 of the Indian Penal Code and the sentences passed against them thereunder are set aside. The appellant Khara Locha is convicted under Section 304, Part II of the Indian Penal Code and is sentenced to undergo imprisonment for the period already undergone by him. No separate sentence is passed against him under Section 201 of the Indian Penal Code. Each of the other appellants is convicted under Section 323 of the Indian Penal Code and sentenced thereunder to undergo rigorous imprisonment for a period of six months. For their conviction under Section 201 read with Section 34 of the Indian Penal Code each of the appellants, other than the appellant Khara Locha, is sentenced to undergo rigorous imprisonment for a period of three years. All the appellants have been in custody for more than six years. All the appellants be set at liberty forthwith.
D.P. Mohapatra, J.
11. I agree.