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Himirika Lokanath and ors. Vs. the State - Court Judgment

LegalCrystal Citation
CourtOrissa High Court
Decided On
Reported in28(1962)CLT435; 1964CriLJ114
AppellantHimirika Lokanath and ors.
RespondentThe State
Cases ReferredBaladin v. Stat of U.P.
.....armed with deadly weapons, like guns, spears, axes, lathis, has to be very closely scrutinised in order to eliminate all chances of false or mistaken implication. as i have already stated, in the facts and circumstances of this case, the accused persons can be convicted both under section 302/34 as well as 302/149. i will accordingly uphold the convictions of all the accused persons under sections 148 and 302/149, i.g.k. misra, j.1. criminal appeal 151/61 has been filed in court by the 42 accused persons and criminal appeal 129/61 has been filed by some of the 42 accused persons through the jail authorities. as there cannot be two appeals by the same accused persons, the case would be considered with reference jot criminal appeal 151/61. any reference to the appeals is to criminal appeal 150/61. mr. palit for trie appellants, mentions that 7 out of these 42 appellants died in jail. these appellants are appellant 9 (himirika kantu), appellant 120 (himirika taudu), appellant 30 (hikoka kantu), appellant 137 (persika koyan), appellant 38 (himirika rimaj, appellant 39 (himirika sadhu), and appellant 41 (sarka arjun). the appeal filed by these seven appellants, who are already dead, abates. it is.....

G.K. Misra, J.

1. Criminal Appeal 151/61 has been filed in Court by the 42 accused persons and Criminal Appeal 129/61 has been filed by some of the 42 accused persons through the jail authorities. As there cannot be two appeals by the same accused persons, the case would be considered with reference jot Criminal Appeal 151/61. Any reference to the appeals is to Criminal Appeal 150/61. Mr. Palit for trie appellants, mentions that 7 out of these 42 appellants died in jail. These appellants are appellant 9 (Himirika Kantu), appellant 120 (Himirika Taudu), appellant 30 (Hikoka Kantu), appellant 137 (Persika Koyan), appellant 38 (Himirika Rimaj, appellant 39 (Himirika Sadhu), and appellant 41 (Sarka Arjun). The appeal filed by these seven appellants, who are already dead, abates. It is therefore, necessary to consider the case of the other 35 appellants.

2. Appellants 1 to 3 have been convicted Under Section 302/34 I.P.C. and the rest of the appellants have been convicted Under Section 302/149 I.P.C. and all have been sentenced, to imprisonment for life. All the appellants have also been convicted uts 148 I.P.C. and sentenced to R.I. for two years each, the; sentences to run concurrently.

3. The prosecution case is as follows: Admittedly the 42 accused persons were in terms of litigations and at loggerheads with deceased Harihar Misra and Biswanath Misra. All the accused persons, excepting Hadu Patra, are Kondas by caste. 35 of the accused persons are residents of village Balikhamar and the rest are residents of Sankulipadar. Both the villages are the hamlets of village Paikapada. Harihar Misra was the paternal uncle of Biswanath Misra. P.W. 2 Baidyanath Misra and P.W. 13 Gangadhar Acharya are the jtwo nephews of Harihar Misra through two other brothers, j Paikpada village belongs to the Rajguru family ot Pitamahulj It was an inam tenure and the inam was abolished in 1954. The family of Harihar Misra claimed that they were' occupancy ryots of the lands in village Balikhamar and Sankulipadar. The Kondas claimed that they were the occupancy tenants. Over this controversy there was litigation:for a considerable number of years and ultimately the family of Harihar succeeded in all Civil litigations and the lands1 were delivered to Harihar Misra through police in May 196J0. Even thereafter the Kondas trespassed upon some of the lands and police case was started which ultimately ended in compromise, the accused persons having given an I undertaking that they would not disturb the possession of the deceased.

At a distance of the furlongs from village Balikhamar, Harihar Misra planted certain mango saplings on a piw of' dry land jknown as Sandhigudia. On 14-8-60 cattle of accused 7,10,111 and 13 damaged those saplings. P.W. 20 Bhubanes-war Mlsiia, brother of Biswanath Misra, was bringing the cattle to; the pound, and on the way he was assaulted and the cattle were rescued by some residents of Balikhamar. At his instance Case No. 200/60 was registered in Rayagada Police Station. Romesh Chandra Acharya (P.W. 1), Sub-specter, went for: investigation of this case to the spot at Balikiiamar with Harihar Misra on 20-8-60. Deceased Biswanath Misra with P. W. 12 and another came to the Railway Station at Teruyelll to meet Harihar Misra and P.W. 1 as Harinar Misra hid sent previous information to him to get ready with witnesses. All of them proceeded towards BallWiamar. P.W, 111 accompanied them on the way. P.W. 1 visited the mango tope alleged to have been damaged and thereafter went to village Balikhamar but the two deceased remained in the tope. Out of the accused persons implicated in the case, accused Nos. 10, 11 and 13 were not found and P.W. 1 could not examine the accused persons involved in Rayagada P.S. Case No. 200/60. Accused 1 Lokenath is a member of the Gram Panchayat. He told the S.I. that tries other accused persons would be produced at Teravolt Railway Station. In the meantime P.W. 2 reached the tope. The Sub Inspector wanted to see village Sankulipadar ana he and P. W. 2 left for that village. The two deceased wanted to return to Teruvelli railway station to await the arrival of P.W. 1. p.Ws. 11, 12 and 13 who were in the tope, wanted to return to their village. The Sub Inspector had hardly gone about a furlong when his attention was attracted by noises created by the mob running from village Balikhamar towards the mango tope. He and P. W. i found that about 40 persons were chasing the two deceased and they at last surrounded the two deceased and assaulted them with lathis in a field known as Mediribile of one Lokanath Buxi of Rayagada. Some of the members of the mob pursued P.W. 2 and when the S.I. wanted to interfere, accused 1 Lokanath pushed him to a distance asking him to leave the spot. The accused persons were armed with lathis and some of them with other deadly weapons. The Sub-Inspector returned to Teruvelly P.S., telephoned to the Assistant Superintendent of Police at Rayagada who proceeded to the place of occurrence by a trolly accompanied by the Circle Inspector and the Stationary Sub-Magistrate. Before arrival of these officers, P.W. 1 had collected some men of Teruvelli and went back to Mediribile, the place of murder. On return he found that the two dead bodies had been shifted from the place of occurrence. The dead body of Harihar Misra was lying about 22 yards away and that of Biswanath Misra lying about a furlong away. P.W. 2 had lodged before P.W. 1 the F.I.R. (Ex. 1) and the Circle Inspector immediately took charge of the case from P.W. 1 ' and went to the spot. The junior S.I. P.W. 22 also assisted in the investigation. Post mortem examination was heia by the Medical Officer (P.W. 4) on 21-8-bO. On 24-8-ou accusad 1 to 3 confessed their guilt before a Magistrate and the confessional statements are Exts. 10, 11 and 12.

4. The accused persons completely deny the occurrence and allege that they have been falsely implicated due to litigations and enmity.

5. One important feature in this case is that the Circle Inspector, who was the investigating officer, could not be examined as a witness as he was seriously ill. P.W. 1 and P.W. 22 were connected with the investigation for different stages with the Circle Inspector. The defence was given full opportunity to cross-examine these witnesses with reference to matters regarding investigation and with reference to eliciting any contradiction in the statements of the prosecution witnesses before the police. The learned Sessions Judge recorded a finding that non-examination of the Circle Inspector Sri S. N. Mohapatra has not prejudiced the accused in any way. Mr. Palit for the appellant has also made no grievance of it.

6. P.Ws. 1 and 2, 6 to 9 and 11 to 13 are the eyewitnesses to the occurrence. P.W. 1 is the Sub-inspector who went to investigate into Rayagada P.S. case No, 200 or I960 dated 14-8-60. He is an eye witness to the occurred itself which took place at 3 p.p. on 20-8-60 in broad daylight. He fully supports the prosecution story as to how the mob of about 40 persons chased the deceased with howls and lathis. According to him, some of the persons of this mob ran ahead of the deceased. All of them surrounded the two deceased from different directions and assaulted them even after they fell down, He supports the story of the prosecution that some of the mob chased P.W. 2 and even his intervention went in vain. He speaks to the active participation of accused 1 to 4 arid 10 to it and identifies them in Court. He is a person who was then recently posted at the Police Station and is a fully disinterested witness. He is fully corroborated in his evidence by all other eye-witnesses. P.Ws. 2 and 13 are nephews of deceased Harihar Misra. P.Ws. 11 and 12 are wholly independent and disinterested witnesses. P.Ws. 6 to 9 are also disinterested witnesses. They are Kondnas and even belong to the caste of the accused persons. Nothing substantial has been brought to our notice by Mr. Palit assailing the evidence of these witnesses. The only argument against P.Ws. 6 to 9 is that they were chance witnesses. There is no magic in the commenf chance witnesses'. Though this is the usual argument, its implication is hardly understood. In broad day light different persons are bound to follow their own avocations of life and while doing so they are likely to come across incidents which in ordinary course they never contemplated to see. Unless their evidence is otherwise assailable, it cannot be whittled down merely on the theory that they were chance witnesses. Moreovsr some of them were working in the fields in the month of August which is the time when important agricultural operations are to be done in the fields. It is not unnatural for such persons to see the occurrence which undeniably occurred on the spot. The eye-witnesses also mutually and substantially corroborate one another. On their evidence it must therefore be held that there was an unlawful assembly at the scene of occurrence on 20-8-60, at about 3 p.m. A significant feature in the case is that all the accused persons belonging to village Balikhamar had deserted the village in the night following the occurrence when the police visited their village.

7. The learned Sessions Judge has utilised the contss-sional statements (Exs. 10 to 12) of accused 1 to 3 in coming to the conclusion that there was an occurrence. The confessional statements are almost similar. Mr. Palit was not addressed any argument that those are not voluntary. He, however, contended that the confessional statements are not true. It is necessary to refer to Ex. 10 to examine the correctness of this contention. The confessional statement is as follows:

Harihar Misra and his nephew Biswanath Misra came to the village of accused 1 on 20-8-60 and asked the accused persons to leave the village. They protested. Thereafter the two deceased destroyed the thatch of their houses and ploughed their Danda. The accused persons therefore got annoyed, pursued the deceased and accused 1 to i assaulted them and killed them.

The first part of the narration of this confessional statement is not supported by any prosecution evidence. The prosecution evidence on the contrary shows that the two deceased did not at all go to the village of Balikhamar on the 20tn and that they were not pursued from inside the village. On the other hand the two deceased were in the mango tope. The accused persons came running in a large body and attacked them. The confessional statement therefore does not fit in with the prosecution story. Similar are the other two confessional statements (Exts. 11 and 12). In the circumstances, the confessional statements {Exts. 10. to 12) are not proved to be true. Appellants 1 to 3 have retracted their confession. It is incumbent on the prosecu1-tion to prove that the confessions are voluntary end true. In view of the finding that the prosecution has failed to prove that the confessional statements are true, these are ruled out of consideration.

8. On an analysis of the entire evidence as made above it must however be held that there was an unlawful assembly.

9. The next important question is whether the accused persons were members of that unlawful assembly, prosecution evidence on the question of' identification of the accused persons as being members of the unlawful assembly is unassailable. In paragraphs 21 to 67 of the judgment, the learned Sessions Judge has examined the case of each individual accused and the witnesses identifying them as being members of the unlawful assembly. Though Mr. Palit faintly argued that P.Ws. 1 and 2 were not put to test identification Parade, he frankly conceded that the evidence regarding identification was overwhelming and he was not in a position to advance any contention with regard to even a single accused person as not being properly identities. We have also carefully gone through the judgment and the evidence on record and we are satisfied that all the accused were members of the unlawful assembly and have been properly identified.

10. Dr. A Surya Rao (P.W. 4) made; the post mortem examination of both the deceased on 21-8-60, it appears from the post mortem reports (Exs. 15 and 16) and ms evidence that deceased Biswanath had 9 ante-mortem injuries on his person out of which 5 were incised wounds an. two were the result of blunt weapon like lathi or the lathi portion of Khanatibadi. The head of Biswanath Misra was smashed into multiple pieces and according to the doctor, the deceased must have died instantaneously. Nine separate blows are necessary to produce the nine injuries. All the wounds were fatal and excepting two injuries others must have been inflicted on the deceased after he had fallen down.

There were 18 injuries on the dead body of Harihar Misra. Injuries Nos. 5 and 14 were out injuries and other injuries were ecchymosed and lacerated wounds produced by hard and blunt weapons such as lathis or lathi portion of Khanahtibadi. There was extensive head injuries which according to the doctor must have resulted in his instantaneous death. The deceased must have received at least 20 lathi blows. There can therefore be absolutely no dbubt that Harihar Misra and Biswanath Misra died as a result of merciless attack on them by the members of the unlawful assembly with lethal weapons,

11. It is essential to determine what was the common object of this unlawful assembly. This common object can be collected from the nature of the assembly and of the arms used by the members of the assembly and from the behaviour of the assembly at or before the scene of the occurrence. The accused persons were in terms of litigation with the deceased for over a long period. They lost the litigations and were ultimately dispossessed through tin help of the police from the lands. On the date of occurrence the Sub Inspector of Police had come for investigation into a case against 4 accused persons whose cattle had destroyed the mango saplings grown by Harihar Misra.

Possibly on the particular day they were again awakened to a sense of vengeance and retribution on account of the feeling that the family of the deceased was responsible for the harassment of the Kondhas. They came running armed with lethal weapons In' a body making shouts. Near about the place of occurrence they divided into batches so as to encircle the deceased and not to allow them any free scope for running away. The medical evidence shows that the deceased were mercilessly beaten by a large number of persons not only with lathis but also with sharp cutting weapons which caused incised wounds and instantaneous death. The attack was indiscriminate and was on vital parts of the body. The existence of the common object must be determined with reference; to the conduct and behaviour at or before the scene of occurrence. The conclusion is, therefore, irresistible that the common object of the unlawful assembly was .to murder Harihar Misra and Biswanath Misra. The murder was committed by the members of the unlawful assembly in prosecution of their common object. The circumstances at any rate do indicate that the members of the unlawful assembly knew it to be likely that murder would be committed in prosecution of their common object. Accordingly all the accused persons are guilty Under Section 302/149 I.P.C.

12. Section 149, I.P.C. lays down that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of the assembly, or such as the in embers of that assembly knew to be likely to Be committed in prosecution of that object, every person who, at the time of committing of that offence, is a member of i{he same assembly, is guilty of that offence. Mr. Palit contended that unless the prosecution proves that a particular named member of the assembly commits the offence of murder, other members of that assembly cannot be convicted of murdjer. This contention is absolutely without any substance. The section is clear in its terms, and if the section is construed that way its purpose would as frustrated. The leading decision on the point is AIR 1925 PC 1. Barendra Kumar v. Emperor. Their Lordships observed that Section 149 creates a specific offence and deals with punisnment of that offence alone. It postulates an assembly of five or more persons having a common object which would be one of those 'named in Section 141 I.P.C. and then the doing of acts by members of it in prosecution of that object. There is a difference between object and intention, for, though their object is common the intentions of the several members may differ and indeed may be similar only in respect: that they are all unlawful, while the element of participation in action which is the leading feature of Section 34, is replaced In Section 149 by membership of the assembly at the time of the committing of the offence. Both section deal with combination of persons, who become punishable as sharers in an offence. Thus they have a certain resemblance and may to some extent overlap.

This leading decision has been followed by the Supreme Court in a series of decisions which elucidates the scope of Sections 34 and 149, IPC. Some of those decisions are (S) : 1955CriLJ572 , Pandurang v. State of Hyderabad (S) : 1955CriLJ721 , Nanak Chand v. State of Punjab(S) : 1956CriLJ923 , Sukha v. State of Rajasthan (S) : 1956CriLJ1365 , Chikkarange Gowda v. Mysore State AIR 1930 SC 289, B. M. Danna v. State of Bombay and : [1950]1SCR840 , Hukam Singh v. State of U.P. The common object is an inference of fact to be deduced in the circumstances of each case. The distinction between 'intention' and 'object' is very thin. Intention is the volition of the mind immediately preceding the overt act while object is the end to which effect its directed, the thing aimed at and that which one endeavours to attain or carry on. In this particular case, the facts and circumstances are such that the accused can be convicted both Under Sections 302/34 I.P.C, as well as 302/149 I.P.C. on the evidence on record. AIR 1941 Lah 117, Emperor v. Ramji Lai illustrates a case in which the accused persons were convicted Under Section 302/149 I.P.C. every though no particular accused was separately convicted Under Section IPC the conviction should be Under Section 302 for all of them, even if it cannot be said which accused is responsible for the fatal blow.

Mr. Palit cited (S) : 1956CriLJ345 Baladin v. Stat of U.P. in support of the contention that mere presence f person does not make him a member of an unlawful assembly. The Lordships observed that it is well settled that mere presence in an assembly does not make such a person a member of an unlawful assembly unless it is shown mat he had done something or omitted to do something which would make him a member of an unlawful assembly. It is therefore necessary for the prosecution to lead evidence pointing to the conclusion that all the appellants had done or been committing some overt act in prosecution of that common object of the unlawful assembly. The omnibus evidence in general terms to the effect that all tries persons and many more were the miscreants and were armed with deadly weapons, like guns, spears, axes, lathis, has to be very closely scrutinised in order to eliminate all chances of false or mistaken implication. There is absolutely no dispute over the proposition that in case of an unlawful assembly as to whether an offence was committed in prosecution of the common object of the assembly, close scrutiny of the evidence is essential, otherwise injustice may occur and innocent persons present may be roped in merely because; they happened to be spectators.

But so far as this particular case Is concerned, the evidence is overwhelming and the question of any particular person being either a spectator or not having the common object of the unlawful assembly and not doing overt acts in prosecution of the common object of that assembly does not arise.

13. To sum up, (1) the accused persons constituted an unlawful assembly; (2) the comma. object of that unlawful assembly was to kill Harihar Misra and Biswanath Misra; and (3) the killing was done in prosecution of the common object of that unlawful assembly. Section 149 I.P.C. therefore applies in terms and all the accused persons are liable to be convicted Under Section 302/149 I.P.C The learned Sessions Judge charged accused 1 to 3 Under Section 302/149 also and found that they were also liable to be convicted under that section; but he did not convict them Under Section 302/149 as he convicted them Under Section 302/34 after accepting their confessions. As I have already stated, in the facts and circumstances of this case, the accused persons can be convicted both Under Section 302/34 as well as 302/149. I will accordingly uphold the convictions of all the accused persons Under Sections 148 and 302/149, I.P.C. Appellants 1 to 3 need not be separately convicted Under Section 302/34 I.P.C.

14. The appeals have no merit and are dismissed.

S. Barman, J.

15. I agree.

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