Tunu Party and Others vs State of Orissa

R.C. Patnaik, J.—This is an appeal from a decision of the Sessions Judge, Mayurbhanj in Sessions Trial No. 72 of 1982 convicting the appellants u/s 302 read with Section 34 of the Penal Code and sentencing each of them to undergo R.I. for life and further convicting appellant No. 1 u/s 323 of the Penal Code and sentencing him to undergo R.I. for three months. The sentences imposed on appellant No. 1 were directed to run concurrently.

The appellants were prosecuted for murder of Kain Purty and his wife Puturi, Kain Purty, Ankur and Khela are brothers. Appellant No. 1, Tunu and Bire (since acquitted) are sons of Ankura. Kanda, appellant No. 2, is the son of Khela. Pada, appellant No. 3, has married the sister of Tunu. Kain and Putri were issueless. A week before the occurrence, Kain had sold his land to Mangal Singh for Rs. 1400/-. There were ill-feelings amongst the brothers on account of this 14-1-1982 was the Makar Sankaranti and was the day of festivities for these people. Around evening of 14-1-82, "Tunu Sirka (P.W. 4) went to the house of Kain, his maternal uncle, with a new Saree for his aunt. When he reached the house of Kain, he saw Bira and his wife quarrelling with Puturi, After his arrival, Bira and his wife left the place. P.W. 4 was given two glasses of handia, while he was drinking the Handia, the appellants arrived at Kain''s house. A lathi (M.O.I.) and an iron rod (M.O.II) were lying on the varendah of his house. Appellant No. 1 picked up the lathi and appellant No. 2, the iron rod. Apprehending trouble Kain attempted to enter inside the room. He was, however, dragged out and was assaulted by appellants Nos. 1 and 2. Kain fell down. Appellants 2 and 3 pressed him on the ground. When P.W. 4 tried to intervene he was assaulted by appellant No. 1 on his hand. At that time, accused Bira arrived at the place and instigated others to assault. Appellant No. 1 then hit Kain on the head with the stone (M.O. III). P.W. 4 then ran away from the place and informed P.W. 1 that Kain had been murdered and the appellants were chasing Puturi to assault her. P.W. 1 rushed to the spot and found the appellants running after Puturi. Appellant No. 1 dealt a lathi blow on the leg of Puturi. She fell down. P.W. 1 snatched away the lathi from appellant No. 1 and the iron rod from Kanda. At that time appellant No. 1 suddenly hit the head of Puturi with the stone. P.W. 1 ran away from the place and informed Pratap (P.W. 2) who along with villagers went to the spot. By that time Kain and Puturi were dead. Information was lodged. Report of P.W. 1 was, treated as F.I.R. and investigation was taken up.

The plea of the appellant was one of denial.

Prosecution examined nine witnesses of whom P.Ws. 1 and 4 are the witnesses to the assault of Kain and Puturi P.W. 2 proved the extra judicial confession said to have been made by appellant No. 1 P.W. 6 is the doctor who proved the injury on the leflt forearm of P.W. 4, P.W. 7 conducted the post-mortem examination of the dead bodies. P.W, 9 is the Investigating Officer.

Relying upon the evidence of the eyewitnesses, the extra judicial confession and other, circumstances, the Sessions Judge convicted the appellants u/s 302 read with Section 34 of the Indian Penal Code for the murder of Kain and Puturi. He further convicted appellant No. l u/s 323 of the Penal Code for the assault on P.W. 4.

Shri S.K. Mund, the learned Counsel for the appellants, has raised several contentions, firstly, information having already been lodged at the Rairangpur Police. Station and a station diary having already been entered on the basis thereof, Ext. 1 which is later in point of time could not be the first information report. Secondly, the prosecution having failed to establish the motive, the case stood improbabilised and should be discarded. Having regard to the statement of P.W. 2 before the I.O., the extra judicial confession should not have been relied upon. Besides, he has also characterised the prosecution story as highly improbable and has submitted that having regard to the facts and circumstances, the learned Sessions Judge erred in law in convicting the appellants u/s 302 read with Section 34 of the Indian Penal Code as there was no prior concert or pre-meditation nor in the facts and circumstances can it be urged that the appellants developed common intention at the spot.

The crux of the matter in this appealis if the eye-witnesses are to be believed and their version is to be relied upon and accepting the prosecution case what offence has been committed by each of the appellants, inasmuch as, in our view the other questions raised by Mr. Mund would have little bearing if the eye-witnesses are held to be trustworthy and their version is accepted.

We need not address ourselves to the argument that the prosecution had failed to establish motive. It is now well settled that the prosecution is not bound to prove motive in each case for it may not be possible for the prosecution to know in each case what impelled the accused to act in a particular manner. As it has been said devil knows not the mind of man. Therefore, mind being inscrutable, it would be inappropriate to call upon the prosecution to establish motive for each crime. If there is unimpeachable evidence connecting the appellants with the crime, failure on the part of the prosecution to establish motive is not of much consequence.

Evidence of P.W. 2 that appellant No. 1 admitted his guilt before him is unreliable for the simple reason that in his statement u/s 161, Cr.P.C. he had stated that he could not remember if Ankura, the father of appellant No. 1 told them that he had killed his brother and sister-in-law. That P.W. 4 is the nephew of Kain and Puturi has not been disputed. He testified that he paid visit to the house of Kain as that was Makar day and he had carried a saree for his aunt as a present. For that reason, he should not be charactered as a chance witness and belittled. He is a competent witness as any other if his version is acceptable. Nothing has been brought out in his cross-examination to discredit his evidence. Merely because the I.O. had not seized the new saree taken by him for his aunt, the story of P.W. 4 cannot be discarded. When P.W. 4 narrated the incident in the house of Kain to P.W. 1 both of them ran to the spot. He has no axe to grind. Though he was cross-examined at length, nothing was elicited to disbelieve him. It, therefore, follows that P.Ws. 1 and 4 are reliable witnesses. According to P.W, 4, appellant No. 1 hit Kain on the head with the stone. He also gave a blow on the head of Puturi with the stone. Some argument is advanced as to how the very stone could be utilised for assualting Kain and Puturi when the incidents took place at different places. The defence should have elicited the answer from the witness. The stone might have been carried by appellant No. 1 while Puturi was being chased. We, therefore, see no substance in the said argument. The doctor has opined that the injuries inflicted on head etc. were sufficient to cause the death of Kain and Puturi in ordinary course of nature. The blows were inflicted by appellant No. 1 with the stone. Hence, there can be on mannerof doubt that he is guilty of murder.

The question then that arises for consideration is the liability of the other two appellants. Can they be constructively liable for the acts of appellant No. 1? When all the three appellants arrived at the place of Kain they were unarmed. Appellants Nos. 1 and 2 icked up the lathi and the iron rod which were lying on the varandah of the house of Kaia Hence, there was no premeditation or preconcert when they arrived at the place. If at all two of them picked up M.Os. I and II, that could be with a view to chastising Kain. They did not have any knowledge, even inclination that one of them, i.e., appellant No. 1 would hit the head of Kain with a piece of stone which was lying in the courtyard. The act of appellant No. 1 in hitting Kain would, therefore, be of his alone. Similarly according to the version of P. W. 1, Puturi was being chased by appellants when P.W. 1 removed the lathi and the iron rod from two of the appellants, suddenly appellant No. 1 inflicted a blow on the head of Puturi with a stone. That action was the sudden act of the appellant No. 1 with which the other appellants could not be associated. The prosecution case that appellant No. 2 assaulted Kain on the chest with M.O. II is not acceptable in view of the positive evidence of the doctor that he found only one external injury on the head of Kain. We are, therefore, of the view that the appellants 2 and 3 had no intention of killing Kain and Puturi by inflicting such bodily injury which was likely in the ordinary course of nature to cause their deaths.

We, therefore, convict appellant No. 1 u/s 302, I.P.C. He sufferes no prejudice in the facts and circumstances of the case, inasmuch as it was the categorical version before the court that it was his blows which brought about the death of Kain and Puturi.

In the result, we accept the appeal of appellants 2 and 3, set aside their conviction u/s 302 read with Section 34 of the Indian Penal Code and acquit them. The conviction of appellant No. 1 is modified from Section 302/34, I.P.C. to u/s 302 I.P.C. and the sentence imposed is upheld.

The appeal is allowed in part.

V. Gopalaswamy, J.

I agree.