Ananda Sen JUDGMENT
Ananda Sen, J.
1. These two appeals arise out of one common judgment dated 29th August, 2003 and sentence dated 3rd September, 2003, passed by the Additional Sessions Judge, Fast Track Court No. IX, Jamshedpur, in Sessions Trial No. 245 of 2000, which are being heard together and are disposed of by a common judgment.
2. Both the appellants have been convicted for offence under Sections 302/34 of the Indian Penal Code and sentenced to undergo imprisonment for life with a fine of Rs. 1000/- each. In default of payment of fine they were further directed to undergo simple imprisonment for 3 months.
3. The prosecution case is based on the fardbeyan of P.W.5 Bhujuram Tudu stating therein that they along with the other villagers were celebrating Sarhul festival in the village in which every family had to pay fifty rupees as donation. He states that he had also given fifty rupees donation for performance of Sarhul festival. He stated that it was mandatory in the village that one person of each family to participate in the festival. The informant represented his family during festival, but his elder brother Jagarnath Tudu and Budhrai Tudu (deceased) did not attend the Sarhul Puja, as they got drunk, and could not reach there on time. Because of the absence of these two persons, during the Sarhul festival, the village Pradhan, Vijay Hansda imposed a fine of Rs. 50/- each on Jagarnath Tudu and Budhrai Tudu (Deceased). These two persons did not deposit the fine amount and as the fine amount was not deposited, a village meeting was held under the chairmanship of the village Pradhan and it was decided to socially boycott Jagarnath Tudu and Budhrai Tudu, till the fine amount is paid. In spite of such social boycott Budhrai Tudu did not deposit the fine amount. This action of Budhrai Tudu annoyed the another brother of this informant i.e. Bhuglu Tudu and other adversaries namely, Ramchandra Hansda (appellant in criminal appeal No. 1498 of 2003) and Bharu Hansda (appellant in Criminal appeal No. 150 of 2004) and they threatened to kill Budhrai Tudu.
On 26.08.1999 at about 11 p.m. when Budhrai Tudu was returning to his house after plying boat, then Bhuglu Tudu, Ramchandra Hansda and Bharu Hasda intercepted him and with the help of Axe assaulted him badly. The informant claims that he had seen the assault as an eye witness. It is further stated in the F.I.R that the deceased Budhrai Tudu screamed and hearing the scream, the informant came out of his house and saw that the deceased was pinned down on the ground and Ramchandra Hasda had caught the feet of the deceased and Bharu Hansda caught hold of both the hands of the deceased and Bhuglu Tudu was giving Axe blow on the person of Budharai Tudu. On seeing this incident the informant screamed and on hearing the scream these three miscreants fled away. The injured, thereafter, by any means got up and came to the house and fell down there. Several villagers assembled after hearing scream and the wife of the deceased also reached the place of occurrence and the deceased narrated the story to all of them. Arrangements were made to take the deceased to the hospital for treatment but he could not survive and died.
4. On the aforesaid fardbeyan, Dhalbhumgarh Police Station Case No. 43 of 1999 corresponding to G.R. No. 309 of 1999 was registered under Section 302/34 of the Indian Penal Code sighting these appellants and Bhuglu Tudu as accused.
5. The police investigated the case and submitted charge-sheet. After submission of the charge-sheet, cognizance was taken and the case was committed to the Court of Session and the same was registered as S.T. No. 245 of 2000. Charge was framed under Sections 302/34 of the Indian Penal Code against the appellants to which they pleaded not guilty and claimed to be tried.
6. To substantiate the charge, the prosecution has examined altogether 9 witnesses and exhibited several documents. P.W.1 Sona Ram Hansda, is the co-villager and neighbour of the deceased. P.W.-2 Rupai Hembram, is also a villager. P.W.-3, Lipi Tudu, is the wife of the deceased. P.W.-4 Chunu Ram Hansda is also a co-villager of the deceased. P.W.-5. Bhujuram Tudu, is the informant himself. P.W.-6 Fagu Murmu, is co-villager. P.W.-7 is Jagarnath Tudu, P.W.8 is Dr. Om Shankar, who conducted the postmortem examination of the deceased. P.W.-9 Subhash Rai, is the police official who exhibited the formal F.I.R. and the signatures, postmortem report, fardbeyan, endorsement of fardbeyan, Signature of O/C of police station on F.I.R. and inquest report which are marked as Ext. 1, 2, 3, 4, 5, 1/1 and Ext. 6 respectively.
7. It is pertinent to mention here that inspite of the order passed under Section 311 of the Cr.P.C. to produce the Investigating Officer as a prosecution witness, the prosecution has failed to produce the same. Thus, the Investigating Officer was not examined in this case.
8. The trial Court after hearing the parties and after analyzing the evidence and considering the entire materials on record convicted the appellants under Sections 302/34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life and imposed a fine of Rs. 1000/- each. In default of payment of fine they were further directed to undergo simple imprisonment for 3 months.
9. I have heard learned counsel for the appellants and also learned counsel appearing on behalf of the State in both the cases. I have also gone through the lower court records.
10. Learned counsel appearing on behalf of the appellants submits that there is no allegation of assault on the deceased as no one has seen the same. As per the appellants, from the evidence it can be said that at best these appellants were seen to be standing at the place of occurrence. It has been suggested that the appellants caught hold of the hand and legs of the deceased thus, their conviction, on the admitted fact, under Section 302 of the Indian Penal Code is absolutely bad as they did not give any fatal blow. It has been submitted that the appellants could not have been convicted by applying Section 34 of the Indian Penal Code. It is submitted that neither any independent witness have been examined nor the Investigating Officer, which has prejudiced the case of the prosecution. It has been submitted that Repo Hansda, in front of whose house the occurrence had taken place, has not been examined which creates doubt about the occurrence itself. It has further been submitted that if the evidences are properly scrutinized, the conclusion will be inevitable that P.Ws. 1, 2, 3 and 4 are not the eye witness. It is submitted that the place of occurrence has not been established by the prosecution. Lastly, it is submitted, that from the evidence, it is clear that there are two groups in the village and these appellants were from a different group, therefore they have been falsely implicated in this case by the informant and the witnesses.
11. Learned Addl. P.P. submits that there are several eye witnesses to the said occurrence and their credibility cannot be doubted. It has been submitted that the evidence is consistent to the effect that these appellants have caught hold of the deceased and Bhoglu Tudu assaulted the deceased with an Axe. It is submitted that the deceased was alive for a very short span of time when he also disclosed before the witness about the occurrence thus, the entire occurrence cannot be doubted. It is submitted that the action of these appellants will attract Section 34 of the Indian Penal Code, and their conviction is also justified.
12. In this case these two appellants have been convicted under Sections 302/34 of the Indian Penal Code. To substantiate the charge 9 witnesses were examined in this case.
13. P.W.-1 Sona Ram Hansda, claimed to be an eye witness to the occurrence. He stated that on 27.08.1999, at about 11 p.m. he was in his house when he heard scream of Budhrai Tudu. He went to the place of occurrence and saw that Ramchandra Hansda caught hold of the legs of Budhrai Tudu and Bharu Hansda caught hold of the hands of the Budhrai Tudu and Bhoglu Tudu with the help of Axe assaulted Budhrai Tudu on his back, leg and on the rib area and injured him. Blood was oozing out from the injuries. He stated that when he, Bhuju Tudu and Lipi Tudu reached there the three miscreants fled away. He stated that Budhrai Tudu managed to get up with his trembling feet, and came to his house and said that Ram Chandra Hansda, Bharu Hansda and Bhuglu Tudu have assaulted him and thereafter he died. He stated that as the deceased did not give fifty rupees donation during Sarhul Puja, he was threatened by these appellants. He also stated that Bhoglu Tudu (one of the accused) is the brother of Budhrai Tudu (deceased) and he identified these appellants.
In cross-examination he reiterated that after being injured Budhrai Tudu said to this witness and others that Ram Chandra Hansda, Bharu Hansda and Bhuglu Tudu have assaulted him. He stated that Ram Chandra Hasda and Bharu Hansda caught hold of him and Bhoglu Tudu assaulted him. He stated that he had given statement before the police and also told the police about the assault and parts of the body where the assault was made. The defence could not adduce anything in their favour from his evidence.
14. P.W.2 Rupai Hembram, stated that he was in the house at the time of occurrence when he heard scream. He came out of his house and saw that Budhrai Tudu was killed. He stated that Bharu Hansda, Ramchandra Hansda and Bhoglu Tudu had killed the deceased. He further states that he had seen the occurrence. Ramchandra Hansda was catching hold of the legs, whereas Bharu Hansda was catching his hand and Bhoglu Tudu inflicted Axe blows and on seeing this witness and others, these three assailants fled away. He states that preparations were being made to take the injured to the hospital, but in the meantime he died. He also stated that there was a dispute in respect of fifty rupees donation which was to be paid during Sarhul festival, but due to the non-payment of the same this occurrence had taken place.
In cross-examination he admits that he had given statement before police. He stated that he told the police that all the three accused persons armed with Axe, have committed murder of the deceased. He stated that Budhrai Tudu also told him that the accused persons have assaulted him with Axe.
15. P.W.3 Lipi Tudu, is the wife of the deceased. She also claims to be an eye witness to the said occurrence. She states that on the date of occurrence she was in the house and on hearing scream of her husband she went to the place of occurrence and saw Ram Chandra Hansda, Bharu Hansda and Bhuglu Tudu. She stated that Ramchanda Hansda caught hold of the legs of the deceased and Bharu Tudu was catching the hands of the deceased and Bhuglu Tudu assaulted the deceased with Axe. She stated that Sona Ram, Rupai, and Fagu also came there, but no one was able to catch the assailants and the assailants fled away. She states that she brought the injured in the house but could not take him to the hospital as he died. She also narrated the genesis of the occurrence that, as fifty rupees donation was not given during Sarhul festival, these assailants have committed murder of the deceased.
In cross-examination she reiterates that Budhrai Tudu told her as to who had committed the assault and she stated that she also told the police that on query from Budhrai Tudu he told her the name of the assailants.
16. P.W.4 Chunnu Ram Hansda, claims to be an eye witness. He stated that he was in his house when he heard scream. He came out and reached the place of occurrence and saw that Ram Chandra Hansda had caught hold of the legs of the deceased, Bharu Hansda caught hold of the hand of the deceased and Bhuglu Tudu was giving blows by Axe. He stated that Budhrai Tudu returned home after the assault and also narrated the name of these persons as the assailants. He states that Budhrai Tudu was alive for half an hour and thereafter he died. He stated that Ram Chandra Hansda, Bharu Hansda and Bhuglu Tudu belongs to a different group whereas the witnesses and the deceased i.e. Bhuju Ram Tudu (informant), Lipi Tudu and Sonaram Hansda are of a different group. He stated that he was in the house when the occurrence had taken place and when he heard scream of Lipi Tudu and Bhuju Ram Tudu, then he came out. He stated that before he reached the place of occurrence the assailants fled away. He denied the fact that he is implicating the assailants as they were of a different group.
17. P.W.-5 Bhuju Ram Tudu, is the informant of this case. He supported his statement in the F.I.R. and narrated that when he heard scream, he came out and saw Bhuglu Tudu, Ram Chandra Hansda and Bharu Hansda assaulting the deceased. Bhuglu Tudu was assaulting with an Axe and the assault was made on left thigh and on the backside. He stated that blood was oozing out from the wounds and Ram Chandra Hansda and Bharu Hansda had caught hold of the deceased. He stated that he went to save the deceased but the assailants fled away. He confirms that the other villagers also came to the place of occurrence. He gives the reason as to why this occurrence had taken place by stating that the deceased did not pay fifty rupees as donation for the Sarhul festival.
In his cross-examination he states that Bhuglu Tudu was holding an Axe and Bharu Hansda did not have any weapon in his hand and Ramchandra Hansda was having an Axe. He states that Ramchandra Hansda and Bharu Hansda did not assault the deceased. He states that the assault was on the backside. He states that Bhuju Ram Hansda and Lipi Tudu were also there at the place of occurrence. In his cross-examination he stated that he is an eye witness to the said occurrence.
18. P.W.6 Fagu Murmu, states that he went to defecate but hearing scream he reached to the house of Budhrai Tudu where he saw Budhrai Tudu lying in the courtyard in an injured condition. He states that he asked Budhrai Tudu as to how he was injured, then Budhrai Tudu told him that Bhuglu Tudu, Ram Chandra Hansda and Bharu Hansda has assaulted him, thereafter, Budhrai Tudu lost his sense. He stated that at that point of time Sonaram Hansda, Rupai Hembram, Narendra Nath Soren, and Lipi Tudu were present there. He states that arrangements were being made to take Budhrai Tudu to the hospital but he died. He states that police came to the house and inquest report was prepared and he identified the signature on the inquest report which is marked as Exhibit-1. He states that he had narrated Sonaram Hansda, Rupai Hembram, Narendra Nath Soren and Lipi Tudu about what the deceased told him. He states that the deceased was his distant relative. There is nothing in his cross-examination in favour of the defence.
19. P.W.-7 is Jaggarnath Tudu. He stated that on 26.08.1999 at about 11 p.m. when Budhrai Tudu was returning from Guglu ghat, these appellants namely, Bharu Hansda, Ram Chandra Hansda and Bhuglu Tudu assaulted him with an Axe and killed him. He stated that he had informed about this occurrence to Chunnu Ram Hansda, Fugu and others. He stated that Ramchandra Hansda and Bhuglu Tudu did not assault the deceased with the help of Axe. He stated that Ramchandra Hansda and Bhuglu was not carrying Axe. He stated that Bhuglu Tudu assaulted on the back and thigh and on the chest. He stated that the place of occurrence is hardly 100 ft. away from his house and there was electricity at that point of time. He further states that his statement was not recorded by the police.
20. P.W.-8 Dr. Om Shankar, is the doctor, who conducted the postmortem of the deceased. He stated that following injuries were found on the person of the deceased:-.
"(i) Sharp Cut 3 c.m. x 2 m.m. facia deep right lateral upper chest caused by sharp cutting weapons.
(ii) Sharp cut 1.5 c.m. x 2 m.m. muscle deep left upper thigh medially with perfused bleeding Janhia show cut on the left upper part corresponding to wound.
(iii) Bruise 2.5 c.m. x 1.5 c.m. left side neck with under line hematoma and contrusion of thyroid cartilage caused by hard blunt substance
(iv) Body covered with mud"
In cross-examination he stated that the injury No. 2 is the main cause of death.
21. P.W.9 Subhas Ram, is a police personnel, who identified the writing and signature of Ashok Kumar, the then officer of Daroli police station. The signature and writing was marked as Exhibit -3. He proved the signatures on the F.I.R. and the formal F.I.R. which was in the writing of Naresh Choudhary and the said documents were marked as Exhibit-5. He proved signature of the then Officer Ashok Kumar on the said document which was marked as Exhibit 1/1. The inquest report was exhibited at his by him which was marked as exhibit-6.
In his cross-examination he stated that he worked with Ashok Kumar, but admitted that the documents were not prepared in his presence. As mentioned earlier, the Investigating Officer has not been examined in this case.
22. After closure of the evidence, the statement of accused-appellants were recorded under Section 313 of the Code of Criminal Procedure.
23. From analyzing the evidence, I find that P.Ws. 1, 2, 3, 4 and 5 are the eye witnesses to the occurrence. All these witnesses gave a consistent account of the occurrence and all of them have stated that Ram Chandra Hansda caught hold of feet of the deceased and Bharu Hansda caught hold of the hands of the deceased and thereafter, Bhoglu Tudu gave Axe blow on the person of the deceased. These witnesses categorically stated that when they reached the place of occurrence, they saw the assault and screamed, as a result of which the assailants fled away from the place of occurrence. All these witnesses had deposed that the deceased managed to come to the house where he also narrated that these two appellants along with one Bhoglu Tudu has assaulted him. All these witnesses have stated that preparation was being made to take him to the doctor, but he succumbed to the injuries. The evidence of these witnesses are consistent and defence could not bring out any discrepancy from their evidence. There is nothing in their evidence to disbelieve them. P.Ws. 1, 2 and 4 are neighbour and co-villagers of the deceased and are independent witnesses. They supported the prosecution case. The genesis of the occurrence has already been narrated by them without any contradiction. P.W.6 is not an eye witness, but he is a very important witness of this case. He is the witness before whom the deceased also narrated the story as to how he got injuries and who are the persons who inflicted the injuries. As per his evidence, it is clear that when he went to the house of the deceased, the deceased was lying in an injured condition in the courtyard. On query by this witness, the deceased narrated that the appellants along with Bhoglu Tudu have assaulted him. He stated that thereafter the deceased became unconscious and later on died. There is nothing in his cross-examination also to disbelieve him. Narration to this witness by the deceased is exactly the same, which the other witnesses have deposed. This enhances the credibility of this witness. The medical evidence also corroborates the statement of the witnesses which clearly stated that there was assault on the thigh, chest and back portion of the deceased by an Axe.
24. P.W.7 stated in his evidence about the assault and also went to state that there was electricity in the village at that point of time and there was light. His evidence also suggest that there was sufficient light to identify the accused persons.
25. Though these appellants themselves have not assaulted the deceased, yet they have been convicted under Section 302 of the Indian Penal Code with the aid of Section 34 of the Indian Penal Code.
26. So far as application of Section 34 of the Indian Penal Code is concerned, the same has to be gathered from the manner, by which the offence is committed. The essence of Section 34 of the Indian Penal Code is simultaneous consensus of the minds of persons participating in criminal action to bring about a particular result. Such consensus can be developed at the spot also and thereby intended by all of them. "Furtherance of common intention" as envisaged in Section 34 of the Indian Penal Code, has to be drawn from facts and conduct of the accused as well as others and the related circumstances of the case.
27. If the facts of this case is seen, it will be found that the appellant Ramchandra Hasda (in Cr. Appeal (DB) No. 1498 of 2003) caught hold of legs and appellant Bharu Hansda (in Cr. Appeal (DB) No. 150 of 2004) caught hold of the hands of the deceased and thereafter, the fatal assault was made by Bhoglu Tudu. This facts suggest that these two appellants made the deceased immobile so that Bhoglu Tudu can easily assault him to death. There are several injuries on the person of the deceased and these appellants fled away from the place of occurrence only when the eye witnesses reached at the spot. This goes to suggest that these two appellants made the deceased immobile and numerous assault was made which shows that their intention was also to see that the deceased dies. Further from the evidence, it is clear that there was an enmity between the deceased and the appellants as the appellants had earlier threatened the deceased of dire consequence on the account of non-payment of the donation. The entire circumstances clearly suggest that the intention of each one of them to kill the deceased was known to each one and they shared them. The conduct of the accused persons as mentioned above confirms applicability of Section 34 of the Indian Penal Code in this case on the evidence gathered.
28. The Hon'ble Supreme Court in the case of Parasa Raja Manikyala Rao and Anr. v. State of A.P., MANU/SC/0823/2003 : (2003) 12 SCC 306, while dealing with the Section 34 of the Indian Penal Code has held as under.
"11. The section really means that if two or more persons intentionally do a common thing jointly, it is just the same as if each of them had done it individually. It is a well-recognised canon of criminal jurisprudence that the courts cannot distinguish between co-conspirators, nor can they inquire, even if it were possible as to the part taken by each in the crime. Where parties go with a common purpose to execute a common object, each and every person becomes responsible for the act of each and every other in execution and furtherance of their common purpose; as the purpose is common, so must be the responsibility. All are guilty of the principal offence, not of abetment only. In a combination of this kind a mortal stroke, though given by one of the party, is deemed in the eye of law to have been given by every individual present and abetting. But a party not cognizant of the intention of his companion to commit murder is not liable, though he has joined his companion to do an unlawful act. The leading feature of this section is the element of participation in action. The essence of liability under this section is the existence of a common intention animating the offenders and the participation in a criminal act in furtherance of the common intention. The essence is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. (See Ramaswami Ayyangar v. State of T.N.) The participation need not in all cases be by physical presence. In offences involving physical violence, normally presence at the scene of offence may be necessary, but such is not the case in respect of other offences when the offence consists of diverse acts which may be done at different times and places. The physical presence at the scene of offence of the offender sought to be rendered liable under this section is not one of the conditions of its applicability in every case. Before a man can be held liable for acts done by another, under the provisions of this section, it must be established that: (i) there was common intention in the sense of a prearranged plan between the two, and (ii) the person sought to be so held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, this section cannot apply.
12. "Common intention" implies prearranged plan and acting in concert pursuant to the prearranged plan. Under this section a preconcert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of offence showing a prearranged plan and prior concert. (See Krishna Govind Patil v. State of Maharashtra.) In Amrik Singh v. State of Punjab it has been held that common intention presupposes prior concert. Care must be taken not to confuse same or similar intention with common intention; the partition which divides their bonds is often very thin, nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice. To constitute common intention, it is necessary that intention of each one of them be known to the rest of them and shared by them. Undoubtedly, it is a difficult thing to prove even the intention of an individual and, therefore, it is all the more difficult to show the common intention of a group of persons. But however difficult may be the task, the prosecution must lead evidence of facts, circumstances and conduct of the accused from which their common intention can be safely gathered. In Maqsoodan v. State of U.P. it was observed that the prosecution must lead evidence from which the common intention of the accused can be safely gathered. In most cases it has to be inferred from the act, conduct or other relevant circumstances of the case in hand. The totality of the circumstances must be taken into consideration in arriving at a conclusion whether the accused had a common intention to commit an offence for which they can be convicted. The facts and circumstances of cases vary and each case has to be decided keeping in view the facts involved. Whether an act is in furtherance of the common intention is an incident of fact and not of law. In Bhaba Nanda Sarma v. State of Assam it was observed that the prosecution must prove facts to justify an inference that all participants of the acts had shared a common intention to commit the criminal act which was finally committed by one or more of the participants. Mere presence of a person at the time of commission of an offence by his confederates is not, in itself sufficient to bring his case within the purview of Section 34, unless community of designs is proved against him. (See Malkhan Singh v. State of U.P.) In the Oxford English Dictionary, the word "furtherance" is defined as "action of helping forward". Adopting this definition, Russel says that "it indicates some kind of aid or assistance producing an effect in future" and adds that any act may be regarded as done in furtherance of the ultimate felony if it is a step intentionally taken, for the purpose of "effecting that felony". (Russel on Crime, 12th Edn., Vol. I, pp. 487 and 488.) In Shankarlal Kacharabhai v. State of Gujarat this Court has interpreted the word "furtherance" as "advancement or promotion".
In the case which the Hon'ble Supreme Court was dealing with, there also, two of the accused had caught hold of the deceased and made him immobile and thereafter, another accused stabbed him and committed murder. The Trial court exonerated the accused who were catching hold of the deceased, from charge under Section 302 of the Indian Penal Code and acquitted them giving benefit of doubt. In an appeal filed by the State, the Hon'ble High Court reversed the judgment of acquittal so far as those accused are concerned and held that those accused persons are guilty of offence punishable under Section 302/34 of the Indian penal Code and sentenced them to undergo life imprisonment. Those accused persons, preferred an appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court held that the High Court was justified in setting aside the order of acquittal and on the facts, those two appellants can be convicted under Section 302 of the Indian Penal Code with aid of Section 34 of the Indian Penal Code.
29. The case in hand is somewhat similar on facts, which was dealt with by the Hon'ble Supreme Court in PRM Rao's case (Supra). Further, as seen in this case, the witnesses are consistent and the participation/involvement of these two appellants in commission of murder, cannot be doubted. Thus, the trial court has correctly convicted these two appellants under Section 302 of the Indian Penal Code with aid of Section 34 of the Indian Penal Code and sentenced them to undergo rigors imprisonment for life even though they did not give the fatal blow. We find, no merit in these two appeals. Both the appeals i.e. Criminal Appeal (DB) No. 1498 of 2003 & Criminal Appeal (DB) No. 150 of 2004, are dismissed. The appellants who are in custody, are to serve out the rest of sentence.
30. A copy of this judgment and the entire Lower Court Records be sent to the Trial Court forthwith.
Harish Chandra Mishra, J.
I agree.
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