Narahari Naik and Others vs State of Orissa

R.K. Dash, J.—Conviction of the appellants (hereinafter referred to as ''the accused'') u/s 304/34, I.P.C. and consequential sentence of rigorous imprisonment for six years awarded by the learned Sessions Judge, Keonjhar, in S.T. Case No. 1 of 1994 has been assailed in the present appeal.

According to the prosecution, on 2nd August, 1993 Kusum Munda (hereinafter referred to as ''the deceased'') had been to the house of accused Narahari Naik to realise a sum of Rs. 10/- towards a cost of a chicken purchased by him prior to the occurrence. The deceased returned empty handed as accused Narahari did not pay him the money. On that day evening all the accused persons being armed with lathis and cycle chain came to the house of the deceased and of them accused Narahari dragged him upto a path and thereafter all the accused persons assaulted him with the weapons held by them and caused injuries on his person. Budhuni Munda, P.W. 5, wife of the deceased came Panning to the spot, administered water to the deceased but by then the deceased was dead. She then went to the house of her brother Ranga Munda, P.W. 3 and informed him about the incident. As it was late in the night next day Ranga Munda, P.W. 3 and his wife Bala Munda, P.W. 4 went to Joda police station and lodged F.I.R., Ext. 6 whereupon a case u/s 302/34, I.P.C. was registered and investigation commenced, on completion whereof charge-sheet was laid against all the accused persons to stand their trial for the aforesaid offence.

The accused persons denied the prosecution case and pleaded, inter alia, that the deceased assaulted the accused persons with axe and while running away fell down on a stoney surface and sustained injuries.

The prosecution in order to bring home the charge to the accused persons examined six witnesses including two doctors and the investigating officer and brought in evidence the F.I.R., post-mortem report, chemical examination report, seizure list, etc. The accused persons in support of their defence plea did not lead any evidence. The learned Sessions Judge on an appraisal of the evidence accepted the prosecution case that on the date of occurrence the accused persons had assaulted the deceased with lathis and cycle chain and held that since the accused persons had no intention to commit his murder he found them guilty of the offence punishable u/s 304, Part I, I.P.C. and consequently convicted and sentenced them as hereinbefore stated.

Shri S.K. Sarangi learned counsel for accused persons, has challenged the correctness of the findings and ultimate conclusion of guilt recorded by the trial Court on the following grounds:

(1) That, P.W. 5, Budhuni Munda being a relation of the deceased was intrested in the prosecution case and therefore, learned Sessions Judge should not have accepted and relied upon her testimony for finding (he accused persons guilty of the offence without there being corroboration;

(2) That, in view of categorical admission of the Investigation Officer, P.W. 6 that accused Narahari had sustained injuries on being assaulted by the deceased, the learned Court below should have held that the incident occurred not in the manner as suggested by the prosecution and consequently extended the benefit of doubt to the accused persons;

(3) That, since the defence plea that the deceased sustained injuries while fleeing away after assaulting accused Narahari, finds support from the evidence of the doctor, P.W. 1, learned Court below by applying the principle of preponderance of probability should have held the accused persons not guilty of the charge.

(4) That, from the evidence of the attending circumstances it cannot be concluded that there was prior meeting of minds of the accused persons in sharing common intention to do away the deceased, yet the learned Sessions Judge in a slipshot manner and without discussing, the evidence of the prosecution in detail held all the accused persons guilty u/s 304, Part I with the aid of Section 34, I.P.C.

Learned Additional Standing Counsel, on the other hand, supporting the judgment of the learned trial Court has contended that finding of guilt recorded against the accused persons being based on proper evaluation of the evidence does not call for any interference in this appeal.

The incident in which the deceased was beaten to death, according to the prosecution, occurred in the village lane lying in front of the house of the deceased and to such incident his wife, P.W. 5 was the sole eye-witness. As deposed to by P.W. 5, at the time of the incident accused Narahari entered inside her house, dragged the deceased outside, whereafter all the three accused persons assaulted him with lathi and cycle chain and made good their escape. It is not her case that besides her, neighbours were also present during the incident. So she being the only eye-witness, her evidence cannot be brushed aside, merely because she was related to the deceased. On a scrutiny of her evidence, I find that she was a natural witness and her presence at the time of the incident was quite probable and believable. What value should be attached to a related witness has been well settled by various judicial pronouncements and the principles are well known which need no detailed reference. In a recent decision in Sahib Singh Vs. State of Haryana, , the apex Court observed that witnesses who are related to the deceased are as competent to depose the facts as any other witness. Mere relationship docs not disqualify a witness. If the incident had taken place at a time or under such circumstances that there was no possibility of any other person being present at the spot, except those who were related to the deceased, those persons, related to the deceased, will be competent to depose the facts seen by them.

Shri Sarangi, learned counsel for accused persons, referring to the evidence of the Investigating Officer, P.W. 6 has tried to impress upon that accused Narahari had received injuries being assaulted by the deceased and so the incident did not occur in the manner as suggested by the prosecution and therefore, benefit of doubt should be extended to the accused persons. P.W. 6, in paragraph 5 of the cross-examination has stated that his investigation revealed that accused Narahari sustained injury on his head being assaulted by the deceased. This answer perhaps was elicited on a question being put with reference to the statements of witnesses examined in course of investigation. It is fundamental that Investigating Officer is not a witness to the incident. Under the Code of Criminal Procedure he is invested with the power to investigate into a cognizable offence and collect the materials. He is not permitted under law to refer to the statements of witnesses recorded u/s 161 of the Code and reproduce the same as evidence in the case, the reason being that the statement of a witness recorded during investigation perse is not evidence. In the present case what appears is that the Investigating Officer was permitted by the learned Sessions Judge to peruse the statements of witnesses and to state what they had deposed before him as to how accused Narahari received the injuries. In the circumstance therefore, statement of P.W. 6 as aforesaid being no evidence in the eye of law cannot be of any help to the accused. Besides, the statement of P.W. 6, even if is treated as evidence, does not improve the case of the defence in any manner. He did not say that he ascertained during investigation that accused Narahari had received the injuries during course of incident. Had it been the case of the defence that accused Narahari in exercise of right of private defence of his person used force against the deceased, then such a plea could have been taken at the earliest opportunity. while cross-examining P.W. 5, the sole eye-witness to the occurrence. In the premises, submission of Shri Sarangi that the occurrence did not take place in the manner as suggested by the prosecution has no substance.

The third submission of Shri Sarangi is that in view of the categorical statement of the doctor, P.W. I that injuries found on the person of the deceased could be possible due to fall on a stoney surface, the learned Court below should have accepted the defence plea that the deceased while fleeing away after assaulting accused Narahari fell down and that the injuries sustained by him (deceased) was accidental. Statement of a doctor being opinion evidence as provided u/s 45 of the Evidence Act, cannot outweigh the oral evidence of an eye-witness. It is no doubt true that P.W. 1 during cross-examination did state that injuries on the head of the deceased were possible due to fall but his such statement in absence of corroboration by oral evidence of any eye-witness cannot be accepted as substantive evidence, ignoring the true and trustworthy evidence of P.W. 5 that it was the accused persons who had assaulted the deceased and caused injuries on his person.

It has been further contended by Shri Sarangi that since the evidence and attending circumstances do not unfold any prior concert or meeting of minds of all the accused persons in sharing common intention, finding of guilt recorded against all of them u/s 304, Part I, I.P.C. with the aid of Section 34, I.P.C. cannot be sustained. In order to convict persons vicariously u/s 34, I.P.C. it is not necessary to prove that each and every one of them had indulged in overt acts. Therefore, there must be material to show that the overt act of one or more of the accused was done in furtherance of common intention. Regarding applicability of Section 34 reference may be made to an oft quoted decision of the Apex Court in the case of Pandurang, Tukia and Bhillia Vs. The State of Hyderabad, where it was observed :

In the case of Section 34 it is well established that a common intention presupposes prior concert. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all. Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention. namely the intention to kill and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a pre-arranged plan. In a case like that each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; if the prosecution cannot prove that his separate blow as a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case. The partition which divides their bounds is often very thin, neverthless. the distinction is real and substantial and it overlooked will result in miscarriage of justice.

Keeping in mind the aforesaid proposition of law, as decided by the Apex Court, reference may be made to the evidence of the sole eye-witness P.W. 5 to find if the accused persons had common intention to do away with the deceased. Her evidence reveals that there was dispute between accused Narahari and the deceased regarding payment of the price of a chicken purchased by the former. On the date of incident the deceased had been to the house of accused Narahari to ask for payment, but returned empty handed. On that day at about 6 p.m. all the accused persons armed with lathis and cycle chain came to the house of the deceased and of them accused Narahari entered inside deceased''s house, dragged him outside and thereafter all the three assaulted him. It was elicited during cross-examination that accused Narahari Naik and Naiki Munda were armed with lathis, whereas accused Harihar Naik was armed with cycle chain. As opined by the doctor. P.W. 1 the deceased had sustained three lacerated injuries on the head and some bruises on the chest and according to him, these bruises could be caused by a cycle chain. It is not the case of the prosecution that after the deceased fell on the ground accused Narahari Naik had assaulted him further with cycle chain and caused more injuries. The above being the sum total evidence of the prosecution, it cannot be said that there was prior meeting of minds of the accused persons to assault the deceased and to cause his death. I would therefore, hold that the accused persons are individually responsible for the injuries caused by them. Since there were three external injuries on the head of the deceased and as opined by the doctor all those injuries were sufficient to cause the death in ordinary course of nature and in view of the statement of P.W. 5 that it was accused Narahari Naik and Naiki Munda who were armed with lathis and had assaulted the deceased, I would hold that these two accused persons are liable for punishment u/s 304, Part I, I.P.C. So far as accused Harihar Naik is concerned, since he used cycle chain and caused bruises on the chest of the deceased he is liable for offence punishable u/s 323, I.P.C. In that view of the matter, conviction and sentence recorded against him u/s 304, Part I, I.P.C. by the learned Sessions Judge cannot be sustained.

Regard being had to the facts, circumstances and the evidence on record while upholding the conviction of accused Harahari Naik and Naiki Munda u/s 304, Part I, I.P.C. the conviction of accused Harihar Naik under the said section is altered to one u/s 323, I.P.C. So far as sentence is concerned, keeping in mind the origin and genesis of the incident, I feel that it would meet and proper if sentence of six years rigorous imprisonment awarded against accused Narahari Naik and Naiki Munda is reduced to four years. So far as accused Harihar Naik is concerned, he being found guilty u/s 323, I.P.C. is sentenced to undergo rigorous imprisonment for one year. As the accused persons are languishing behind the bar for more than four years, they be set at liberty forth, if not required in any other case.