Sukadev Giri & Anr. Vs. State of Orissa
EmailAppeal: Criminal appeal No. 390 of 2002
Crl. A. No. 391 of 2002
Petitioner: Sukadev Giri & Anr.
Respondent: State of Orissa
Apeal: Criminal appeal No. 390 of 2002
Crl. A. No. 391 of 2002
Judges: Y. K. SABHARWAL & K. G. BALAKRISHNAN, JJ.
Date of Judgment: Nov 20, 2002
Head Note:
Criminal Law
Indian Penal Code, 1860
a) Section 34- Three persons arriving and asking for 4th – One of them having knife – Other three not shown to have any weapon – Accused with knife giving fatal blow – Other three, if could be made liable under section 34. Held that mere presence of others would not make them liable under section 34, though common intention can be formed at the spot itself.
b) Sections 302 and 34 – Murder – Common intention – Scuffle on account of bullocks having entered paddy field – Owner calling for help – Three others arriving – One of them taking out “gupti” from under garments – No evidence to show that remaining 3 knew that 4th was having gupti – One of the 3 over powering deceased – He also having no knowledge. Held that others would not be liable under section 34. Conviction under section 302 and under section 302/34 not maintainable. (Para 8)
JUDGEMENT:
ORDER
1. Appellants in these two appeals are near relations. Appellant Rushinath Giri is father of appellants Atul Kumar Giri and Basanta Giri. The other appellant Sukadev Giri is brother of Rushinath Giri. All of them were charged for offences under sections 302/34, 307/34 and 323/34 of the Indian Penal Code. They were found guilty of the charge and were convicted by the sessions judge. All of them were sentenced to undergo imprisonment for life for offence under section 302/34 of the Indian Penal Code. No separate sentence was passed for offence under section 307/34 and section 323/34 of the Indian Penal Code.
2. The conviction and sentence in respect of offence under section 302/34 and section 323/34 IPC having been maintained by the High Court in the appeals filed by all four of them, these appeals have been filed challenging the judgment of the High Court. The High Court by the impugned judgment has, however, set aside the conviction of the appellants under section 307/34 of the Indian Penal Code.
3. The first information report was lodged on the information of PW 8 – Pranabandhu Giri stating that on 12th November, 1990 while he was tending cattle, two heads of bullocks belonging to him came over the ridge adjoining the land of Rushinath where paddy crop was standing. The crop was ready for harvesting. Rushinath was standing at a little distance. Having seen the bullocks he abused PW 8 which resulted in altercation of words followed by a tussle. Rushinath cried for help. On hearing it, the other appellants came to his rescue. Appellants Basanta and Atul came being armed with axe and lathis respectively. Sukadev also accompanied them. They all surrounded PW 8. The deceased Jugal who was also tending cattle at a little distance came at the spot. He protested against the high handed action of the appellants. Jugal was caught hold by Sukadev, whereafter Rushinath snatched away the axe from the hand of Atul and gave a blow with its blunt side on the head of Jugal. Immediately thereafter Atul brought out a knife and dealt a piercing blow on the back of Jugal. On receipt of these injuries Jugal fell down and succumbed to the injuries. PW 7 and PW 10 also received injuries. The prosecution to establish the charge examined 11 witnesses including four eye witnesses i.e. PWs 1, 7, 8 and 10. PW 3 is the doctor who conducted post mortem examination. PWs 4, 5 and 6 are other doctors who examined the injured as well as appellant Rushinath and Atul.
4. The injuries found on deceased Jugal are these:
” (i) Incised wound 2″ x 2″ deep incised plural cavity 2″ below the anqube of left shapul on the 7th and 8th inter costal space fracturing the parietal bone.
(ii) Incised wound on the left scalp over the left parietal bone size 1″ x 1″ deep fracturing the parietal left side.
5. It is in evidence of PW 3 that as a result of injuries both the lungs were collapsed and death was due to injury to vital organ like lungs and maninges.
6. It is established that scuffle took place in the manner noticed hereinbefore. It is also in evidence that in the scuffle the appellant Rushinath and Atul also received some injuries though simple in nature.
7. In the impugned judgment, on the appreciation of the evidence of the eye witnesses and the medical evidence, the High Court came to the conclusion that the prosecution has failed to establish that any injuries were inflicted with the axe. The High Court, however, confirmed the finding of the learned sessions judge that the appellant Atul inflicted injuries on deceased Jugal with knife. Those injuries resulted in instantaneous death of Jugal. As already noticed, the High Court has set aside the conviction of the appellants under section 307/34 of the Indian Penal Code. On the examination of the evidence, the High Court found Atul responsible for making the fatal blow with knife. Other accused who were present on the spot, in the opinion of the High Court, were liable for conviction under section 302/34 of the Indian Penal Code. The High Court concludes that:
“Having found that appellant Atul was responsible for dealing the fatal blow, all other accused persons who were present at the spot, including appellant Rushinath, are also liable for conviction under section 302 read with section 34 of the Penal Code. We, therefore, do not find any reason to interfere with the conviction of the appellants under section 302/34 of the Penal Code.”
8. The presence of all the four appellants is not in dispute. It is also established that two of the appellants Rushinath and Atul also received injuries. It is established that the scuffle took place on the entering of the bullocks in the field of Rushinath as detailed hereinbefore. It also stands established that there was a sudden quarrel on account of the incident in question. We have examined the evidence. We find considerable force in the contention of learned counsel for the appellant that there was no pre-concert or premeditation or meeting of mind between the 4 accused for committing the murder of Jugal Kishore. It is no doubt true that the three appellants came on Rushinath asking for help. It is, however, not proved that except appellant Atul others were carrying any weapon. The High Court has also not found that they inflicted any injury, the only finding by the High Court is that they were present at the spot. The mere presence will not make them liable for the offence under section 34 of the Indian Penal Code. It is no doubt true that intention can be formed at the spot itself but that is not the case in the facts and circumstances of the incident in question. It has come in evidence that the appellant Atul was carrying with him a gupti but at the same time, according to the testimony of PW 1, he took out that gupti from inner side of the garments and pushed it in the left back of Jugal who started bleeding profusely, as a result of injury inflicted by Atul. There is no evidence to show that the other appellants knew that Atul was carrying gupti under his garments. Regarding Sukadev who is said to have over-powered deceased Jugal too, the position is no different. There is no evidence that prior to over-powering, Sukadev had any knowledge about Atul carrying knife under his garments. There is thus no evidence to establish meeting of minds between the accused to commit murder of deceased Jugal. The High Court has also not found so except simply stating that they were present at the spot and were liable for conviction under section 302 read with section 34 of the Indian Penal Code. In this state of affair the conviction of appellants Rushinath, Basanta and Sukadev under section 302 read with section 34 of the Indian Penal Code cannot be maintained. The same would be position in respect of conviction under section 323/34 IPC. In any case approximately 6½ years imprisonment insofar as Rushinath and Sukadev are concerned and as far as Basanta is concerned approximately 4 years imprisonment has already been undergone as per the submission made by learned counsel for the appellants.
9. In respect of Atul, it was strenuously contended that the nature of offence deserves to be converted from section 302 to section 304 part II. We are unable to accept the contention. On his father asking for help he came from his house with gupti hidden under his clothes. It cannot be said that he had no intention to commit the murder. The nature of the injuries also demonstrates the intention of the appellant – Atul. He is, therefore, liable to conviction under section 302 simplicitor. We, therefore, modify the conviction awarded to Atul to section 302 IPC instead of one under section 302/34 IPC. His sentence for the said offence is, however, maintained.
10. For the aforesaid reasons, we set aside the impugned judgment and acquit appellants Rushinath, Basanta and Sukadev for offence under section 302 read with section 34 IPC as also for offence under section 323/34 IPC and allow these appeals. They shall be released forthwith if not required in any other case.
11. The conviction and sentence of the appellant – Atul is maintained in the manner aforesaid. The appeal of Atul is dismissed.
***********************
1. Appellants in these two appeals are near relations. Appellant Rushinath Giri is father of appellants Atul Kumar Giri and Basanta Giri. The other appellant Sukadev Giri is brother of Rushinath Giri. All of them were charged for offences under sections 302/34, 307/34 and 323/34 of the Indian Penal Code. They were found guilty of the charge and were convicted by the sessions judge. All of them were sentenced to undergo imprisonment for life for offence under section 302/34 of the Indian Penal Code. No separate sentence was passed for offence under section 307/34 and section 323/34 of the Indian Penal Code.
2. The conviction and sentence in respect of offence under section 302/34 and section 323/34 IPC having been maintained by the High Court in the appeals filed by all four of them, these appeals have been filed challenging the judgment of the High Court. The High Court by the impugned judgment has, however, set aside the conviction of the appellants under section 307/34 of the Indian Penal Code.
3. The first information report was lodged on the information of PW 8 – Pranabandhu Giri stating that on 12th November, 1990 while he was tending cattle, two heads of bullocks belonging to him came over the ridge adjoining the land of Rushinath where paddy crop was standing. The crop was ready for harvesting. Rushinath was standing at a little distance. Having seen the bullocks he abused PW 8 which resulted in altercation of words followed by a tussle. Rushinath cried for help. On hearing it, the other appellants came to his rescue. Appellants Basanta and Atul came being armed with axe and lathis respectively. Sukadev also accompanied them. They all surrounded PW 8. The deceased Jugal who was also tending cattle at a little distance came at the spot. He protested against the high handed action of the appellants. Jugal was caught hold by Sukadev, whereafter Rushinath snatched away the axe from the hand of Atul and gave a blow with its blunt side on the head of Jugal. Immediately thereafter Atul brought out a knife and dealt a piercing blow on the back of Jugal. On receipt of these injuries Jugal fell down and succumbed to the injuries. PW 7 and PW 10 also received injuries. The prosecution to establish the charge examined 11 witnesses including four eye witnesses i.e. PWs 1, 7, 8 and 10. PW 3 is the doctor who conducted post mortem examination. PWs 4, 5 and 6 are other doctors who examined the injured as well as appellant Rushinath and Atul.
4. The injuries found on deceased Jugal are these:
” (i) Incised wound 2″ x 2″ deep incised plural cavity 2″ below the anqube of left shapul on the 7th and 8th inter costal space fracturing the parietal bone.
(ii) Incised wound on the left scalp over the left parietal bone size 1″ x 1″ deep fracturing the parietal left side.
5. It is in evidence of PW 3 that as a result of injuries both the lungs were collapsed and death was due to injury to vital organ like lungs and maninges.
6. It is established that scuffle took place in the manner noticed hereinbefore. It is also in evidence that in the scuffle the appellant Rushinath and Atul also received some injuries though simple in nature.
7. In the impugned judgment, on the appreciation of the evidence of the eye witnesses and the medical evidence, the High Court came to the conclusion that the prosecution has failed to establish that any injuries were inflicted with the axe. The High Court, however, confirmed the finding of the learned sessions judge that the appellant Atul inflicted injuries on deceased Jugal with knife. Those injuries resulted in instantaneous death of Jugal. As already noticed, the High Court has set aside the conviction of the appellants under section 307/34 of the Indian Penal Code. On the examination of the evidence, the High Court found Atul responsible for making the fatal blow with knife. Other accused who were present on the spot, in the opinion of the High Court, were liable for conviction under section 302/34 of the Indian Penal Code. The High Court concludes that:
“Having found that appellant Atul was responsible for dealing the fatal blow, all other accused persons who were present at the spot, including appellant Rushinath, are also liable for conviction under section 302 read with section 34 of the Penal Code. We, therefore, do not find any reason to interfere with the conviction of the appellants under section 302/34 of the Penal Code.”
8. The presence of all the four appellants is not in dispute. It is also established that two of the appellants Rushinath and Atul also received injuries. It is established that the scuffle took place on the entering of the bullocks in the field of Rushinath as detailed hereinbefore. It also stands established that there was a sudden quarrel on account of the incident in question. We have examined the evidence. We find considerable force in the contention of learned counsel for the appellant that there was no pre-concert or premeditation or meeting of mind between the 4 accused for committing the murder of Jugal Kishore. It is no doubt true that the three appellants came on Rushinath asking for help. It is, however, not proved that except appellant Atul others were carrying any weapon. The High Court has also not found that they inflicted any injury, the only finding by the High Court is that they were present at the spot. The mere presence will not make them liable for the offence under section 34 of the Indian Penal Code. It is no doubt true that intention can be formed at the spot itself but that is not the case in the facts and circumstances of the incident in question. It has come in evidence that the appellant Atul was carrying with him a gupti but at the same time, according to the testimony of PW 1, he took out that gupti from inner side of the garments and pushed it in the left back of Jugal who started bleeding profusely, as a result of injury inflicted by Atul. There is no evidence to show that the other appellants knew that Atul was carrying gupti under his garments. Regarding Sukadev who is said to have over-powered deceased Jugal too, the position is no different. There is no evidence that prior to over-powering, Sukadev had any knowledge about Atul carrying knife under his garments. There is thus no evidence to establish meeting of minds between the accused to commit murder of deceased Jugal. The High Court has also not found so except simply stating that they were present at the spot and were liable for conviction under section 302 read with section 34 of the Indian Penal Code. In this state of affair the conviction of appellants Rushinath, Basanta and Sukadev under section 302 read with section 34 of the Indian Penal Code cannot be maintained. The same would be position in respect of conviction under section 323/34 IPC. In any case approximately 6½ years imprisonment insofar as Rushinath and Sukadev are concerned and as far as Basanta is concerned approximately 4 years imprisonment has already been undergone as per the submission made by learned counsel for the appellants.
9. In respect of Atul, it was strenuously contended that the nature of offence deserves to be converted from section 302 to section 304 part II. We are unable to accept the contention. On his father asking for help he came from his house with gupti hidden under his clothes. It cannot be said that he had no intention to commit the murder. The nature of the injuries also demonstrates the intention of the appellant – Atul. He is, therefore, liable to conviction under section 302 simplicitor. We, therefore, modify the conviction awarded to Atul to section 302 IPC instead of one under section 302/34 IPC. His sentence for the said offence is, however, maintained.
10. For the aforesaid reasons, we set aside the impugned judgment and acquit appellants Rushinath, Basanta and Sukadev for offence under section 302 read with section 34 IPC as also for offence under section 323/34 IPC and allow these appeals. They shall be released forthwith if not required in any other case.
11. The conviction and sentence of the appellant – Atul is maintained in the manner aforesaid. The appeal of Atul is dismissed.
***********************
