R.N. Misra, J.
1. This is an application made under Section 439 of the Code of Criminal Procedure at the instance of the State of Orissa for vacating the order made by the learned Sessions Judge. Koraput, admitting the opposite parties 1 to 13 to bail pending trial. The opposite parties have been committed to the Court of Session to stand their trial for offences punishable under Sections 148, 302/149, 302/34 and 342 of the Indian Penal Code. Bail was granted by the learned trial Judge by his order dated 23.3.1972 to 17 accused persons including all the opposite parties in the case. The informant came before this Court in Criminal Miscellaneous Case No. 55 of 1972 and asked for cancellation of the bail. On 12.5.1972, this Court vacated the order by saying-.The learned Sessions Judge has not discussed the individual case of these persons as to whether they are entitled to bail on the basis of evidence; but by a general observation he has released them all on bail. His observation is to the following effect:.All the other accused-petitioners are not directly concerned with the offence under Section 302, I.P.C but are alleged to have been constructively made liable, under Section 302, I.P.C. and there appear no reasonable grounds for believing that they are euilty under Section 302, I.P.C.We are surprised that a learned Sessions Judge would take such a view of the law. It is only on the basis of constructive liability that accused persons are convicted under Section 302/34 or 302/149, I.P.C. and once the 'constructive liability1 is established, it is as good as. committing the offence itself. The opposite parties cannot, therefore, be released on bail merely on the theory that they would be liable constructively for an offence under Section 302, I.P.C. This bail granted to the opposite parties must, therefore, be cancelled.
Certain other questions were discussed in the order which do not seem to be relevant for the present purpose. This Court. further directed:
The next question for consideration is whether the Sessions Judge should be directed to consider the cases of these individual opposite parties whose bail we have cancelled. In our opinion, he has not applied his mind to the merits of individual cases and injustices may be done by cancellation of the bail order. The Sessions Judge would therefore, re-consider the cases of individual opposite parties except opposite party No. 7, (whose bail was not cancelled in view of the fact that he was a young boy aged 16) if and when the matter is moved before him. As things now stand, all the opposite parties except opposite party No. 7 be arrested and sent to custody. The Sessions Judge would dispose of the trial of the case within 1.1/2 months from today with intimation to this Court....On 19.5.1972. the 13 opposite parties applied to the learned Sessions Judge for bail under Section 498 of the Code of Criminal Procedure. That matter was ultimately heard on 26.5.1972 and orders were pronounced on 31.5.1972 directing release of the opposite parties on 'bail of Rs. 5,000/- with two sureties of the like amount each to the satisfaction of the Sub-divisional Magistrate, Jeypore'. On this occasion the learned trial Judge held:...The present petitioners are made liable under Section 302/149, I.P.C. for their constructive liability only. According to the post-mortem report of the Doctor, there were 15 injuries on the dead body of Biswanth Pradhan. Out of these injuries injury No. 1 might have been caused by spear and the injuries 6 and 7 might have been caused by a knife and injury No. 3 on the neck was fatal and all other injuries were simple. According to the report of the doctor, there were 22 injuries on the dead body of Deboraj Pradhan. Out of these injuries the injuries 6, 9, 10, 12 to 14 and 19 might have been caused by spear or knife and were fatal and all other injuries were simple. According to the prosecution evidence and the evidence of Abhimanyu Pradhan before the committing Court the present petitioners were armed with lathis only. There is no evidence regarding the common intention or common object of, these petitioners in forming the unlawful assembly. The eve witness Abhimanyu Pradhan has not stated the names of these petitioners during his statement before the police. But he has stated before the Magistrate under Section 164. Cri. P.C. that all the accused gave lathi blows to Deborai Pradhan and Biswanath Pradhan. This amounts to assault by the individual accused persons separately but not a ore-planned action. The eve witnesses Gora, Domburu. Ghana and Dalibandhu also do not name any of the petitioners during their examination before the police. The P. Ws. Sodasiba and Dalai do not name any of these petitioners in their evidence before the Magistrate under Section 164, Cri.P.C. The commission of the offence of murder, must be involved in common object of the petitioners so as to make them constructively liable. If some of the principal accused who are not petitioners suddenly killed Deborai Pradhan and Biswanath Pradhan by giving strokes with sharp cutting weapon, the petitioner's who fare) alleged to have assaulted them with lathi cannot be guilty under Section 302 read with Section 149, I.P.C. in the absence of their common object to kill them. There is absolutely no material to show that the petitioners had the common object to kill Deborai Pradhan or Biswanath Pradhan. The petitioners might have not known that the deadly weapons were likely to be used for the fatal injury in the prosecution of the common object. The materials on. the record simply show that the petitioners are responsible for their individual acts only. Considering all the above circumstances. I think there appears no reasonable ground that the petitioners are guilty of the offence under Section 302/149, I.P.C. ....
The Leraned Sessions Judge has certainly gone far beyond what was necessary to be considered at the time of disposing of a petition for bail. He was also not correct when he said that the statement recorded under Section 161 Cri.P.C. was evidence.
2. The prosecution case seems to have been that Biswanath and Deborai, the two who have been murdered were father and son respectively. Deborai was proceeding to Jeypore on cycle along with one of the P. Ws. before the committing Court. The 24 accused persons including all the opposite parties who had concealed themselves suddenly appeared. Many of them were armed with deadly sharp cutting weapons. Each of the opposite parties had a lathi in ham? Deborai was done to death by inflicting blow after blow by various deadly weapons. Each of these opposite parties also gave lathi blows. Having killed Deborai, they proceeded upto the neighbouring, field where Biswanath was busy in cultivating operations. Biswanath was also assaulted. fatally in the same manner. Each of the accused persons having a lathi is said to have also inflicted lathi blows. Some of the opposite parties chased some of the prosecution witnesses who were near about while some others threw the broken lathis into the jungle and all the accused persons left in a body.
These allegations of the prosecution seem to have been supported by the five witnesses who were examined before the committing Magistrate. P. W. 1 Abhimanyu Pradhan. relation of the Parties has said:.I myself and Deborai Pradhan were coming to Court on two cycles. Deborai was coming ahead. Near Manakhaman Danger all the accused persons of this case came out from southern side jungle. The accused person? were armed with tangias lathis, katis and burchas. Accused Banamali Behera. Nilambar Choudh. Biswanath Mandal, Jai Mandal and Banshi Mandal were armed with tangias. The accused Baghunath Behera was armed with burchha and accused Ghana Naik was armed with a lathi. The rest of the accused persons were armed with lathis. The accused persons surrounded us. Then accused Biswanath Mandal caught hold of the cycle handle of Deborai Pradhan.... Then all other accused persons assaulted Deborai Pradhan on the direction of accused Biswanath Mandal.... Then on the direction of Biswanath Mandal accused Magatha Pradhan (opposite party No. 13) and Ghana Naik threw away the injure ed Deborai Pradhan fwho succumed soon thereafter to his injuries) inside the forest. They also threw away one broken lathi of Jagulu Behera and one Kati and another lathi inside the forest. Then the accused persons dragged me towards Phatamunda paddy land where Biswanath Pradhan was working with his son.... Out of fear the deceased Biswanath Pradhan requested the accused persons by folded hands not to assault him. But the accused Biswanath Mandal and Ghana Naik told the other accused persons to assault Biswanath Pradhan. At this the accused Mahakala Naik threw one stone aiming at Biswanath Pradhan which hit his left cheek. When Biswanath Pradhan asked his goti Ghana Paraja to give him the spade, the accused Bhikari Choudhury dealt, a lathi blow on the right hand of Biswanath Pradhan. The accused Ghana Naik dealt a lathi blow on the neck of Biswanath Pradhan. At that time the accused Raghunath Behera pierced his burchha on the right cheek of Biswanath Pradhan. At this Biswanath Pradhan fell down on the ground. Then all the accused persons assaulted him by lathis. Then accused Mahakala Naik gave kicks on the neck of Biswanath Pradhan. Receiving the blows Biswanath Pradhan died at the spot.... At that time Dalibandhu Domb who was going by that way protested. But the accused persons threatened him with assault. Then all the accused persons fled away towards Jeypore holding the blood stained lathis, kati and tangias and burchha....
P. W. 2 Gora Domb has said:.Near Manakhamana jungle on the road I found that all the 24 accused persons suddenly came out from inside that jungle. At that time P.W. 1 and the deceased Deborai Pradhan were going towards Jeypore town on 2 cycles. At that time all the accused persons surrounded the P. W. 1 and the deceased Deborai Pradhan...(after indicating the individual blows by some of the accused on Deborai). The other accused persons dealt lathi blows on Deborai Pradhan on the direction of accused Biswanath Mandal.... Then on the direction of accused Biswanath Mandal, accused Magatha (opposite party No. 13) and Ghana threw away the dead-body of Deborai Pradhan inside the jungle.... The accused persons told me you go to your village and you will not disclose this fact to anybody....
P. W. 3. Dambaru Pujhari was working as a peon in the local Gram Panchayat where deceased Biswanath Pradhan was the Sarpanch. He has indicated that deceased Pradhan and accused Biswanath Mandal contested for the office of Sarpanch and the deceased got elected. There was long standing dispute between the two Biswanaths over some land. According to him..The accused persons were armed with blood stained tangias, kati, burchha and lathis. (The witness refers to the second murder, i.e. of Biswanath Pradhan). The accused Biswanath Mandal was holding one tangia. Nilambar Jai, Banshi and Banamali were also armed with blood stained tangias. The accused Raghunath Behera was armed with a blood stained burchha. Seeing the accused persons, the deceased Biswanath Pradhan requested the accused persons with folded hands saving not to assault him. But the accused persons gave him evasive reply. Then the accused persons surrounded us Accused Narasingha (Opposite Party No. 4) and Rama (Opposite Party No. 1) chased Ghana Paraja.... (The witness thereafter gives details of assault on Biswanath Pradhan)...all the accused persons fled away towards Jeypore.
P. W. 4. Dalibandhu Domb has similarly stated that all the 23 accused persons (one of them according to the prosecution remained where Doboraj fell down after being injured) came to that place being armed with tangias. lathis and burchha. They were shouting saving 'we have killed Deborai Pradhan now we will kill his father Biswanath Pradhan.' The accused persons came to that place and surrounded Biswanath Pradhan. The accused persons also dragged with them P. W. 1. Abhimanyu. (The witness gives details of assault on Biswanath and then states) when Ghana Paraja (a P. W.) protested, the accused Narasingha Pradhan (opp. party No. 4) and Rama Pradhan (opposite party No. 1) chased him. When the Panchayat peon Damboru Pujhari (a P. W.) protested, the accused Ghana and Bhikari Choudhury assaulted him by lathis. Then the other accused persons dealt lathi blows on Biswanath Pradhan. So he died at the spot.
P. W. 5 is Ghana Paraja. He has stated about the murderous assault on Biswanath Pradhan. According to him:.After some time all the accused persons excepting the accused Magatha Pradhan came to us being armed with lathis, tangias and a Burchha. They were also dragging P. W. 1 Abhimanyu Pradhan with them. The accused persons came to that place shouting to kill Biswanath Pradhan. The accused Raghu Behera was armed with a burchha, accused Biswanath Banamali, Nilambar, Jai and Banshi were armed with a tangia each and the rest accused persons were armed with a lathi each.... (After the witness gives details of the assault on Biswanath Pradhan). Then the other accused persons assaulted the deceased Biswanath with lathis.... Then the accused persons fled away towards Jeypore with their lathis, tangias and burchha.
Such is the evidence of the 5 eye witnesses who were examined in the commitment proceeding. These witnesses had also given their statements under Section 164 of the Code of Criminal Procedure. They were also examined by the police during investigation. As would appear from the order of the learned Sessions Judge, some of these witnesses had not stated before the police in the way they have deposed in the Court. In one or two instances in the statements under Section 164 of the Code, the entire details given in Court are wanting. But what surprises us most is the manner in which the learned trial Judge proceeded to deal with the bail matter. If the evidence of these witnesses, who, we ordinarily expect, shall be examined at the trial, is believed, there can be little doubt that the only possible conclusion would be that all the accused persons came with the common object of murdering the father and son. According to the prosecution witnesses all the 24 accused persons had concealed themselves at one place, obviously lying in wait for Deborai to come that wav. Each of them was armed with a lathi each. A lathi is not less deadly than the sharp cutting or the piercing instruments. They accosted Deboraj in a body. Under directions of Biswanath Mandal. assaults took place. All the accused persons participated in the murderous attack each using his instrument. All excepting one moved to the field where Biswanath was working after Deborai had been fatally assaulted. They were shouting that they had killed the son and now they would kill the father. According to these witnesses, all the 23 accused persons including these opposite parties participated in the second attack and all threatened some of the witnesses saving that they should go back to the village and not disclose what they saw. All of them went back in a body after the incident. Whether such evidence when given at the trial before the learned Sessions Judge would be believed or not is a different matter. But what we notice with anxiety and alarm is the statement of the learned Sessions Judge that these at best show individual assaults by different accused persons and there is no element of concerted action or activity following a common object to commit offence.
3. We cannot believe that the learned Judge who dealt with the bail matter was not aware of the scope of constructive liability envisaged under Section 149 of the Indian Penal Code. There was no scope for overlooking the position because this Court, while canceling his order of bail on the earlier occasion had clearly pointed out with equal anxiety and surprise the error in the approach and had pointedly drawn the attention of the same learned Judge that those who gave lathi blows could be guilty of the same offence as those who assaulted with other instruments if it was ultimately found that all came in a body with the pre-conceived object of doing to death the unfortunate father and his son.
4. What is more surprising to us is that while dealing with the bail matter, the learned Sessions Judge went out of his way to indicate that there could be no conviction under Section 302/149, I.P.C. He was considering the bail matter only and therefore, he had no justification to express himself in such manner. In fact his saving so has in the mean time led to a petition of transfer being filed before this Court and our teamed brother Panda. J. by his order dated 21.7.1972 very rightly has directed the transfer of the trial from the Court of this trial Judge to the learned Sessions Judge at Berhampur.
5. We have no option but to conclude the view given by the learned Sessions Judge is wholly untenable in law and so far as appreciation of the prosecution case on facts is concerned, even for the limited purpose of bail, is wholly misconceived and no prudent man. much less one experienced in law, could come to the conclusion, which the trial Judge has reached. We would accordingly cancel the order admitting the opposite parties to bail and direct each of the opposite parties to be committed to custody again before their trial at the new forum takes place.
6. We are dealing with the bail application only and have not the slightest intention to say anything with regard to the final view that can be taken in the matter. The trial is yet to take place. What would be the nature of evidence at the trial and what further things would transpire are yet unknown. Anything said by us in this order must be taken to be confined to the bail matter and we do sincerely hope that the learned trial Judge would not at all be swayed away by any of our observations as statements binding upon him. We must make it clear again that all that we have said is only to bring out the fallacy in the stand of the trial Judge in admitting the opposite parties to bail and not with the intention of indicating our view about the prosecution case. In fact we have found fault with the trial Judge in indicating a view which seems to be almost final in regard to a part of the prosecution case while dealing with the bail matter only.
7. This Court on the earlier occasion had directed the trial to be over within six weeks. That period is long over. The time schedule could not be followed because of this application for cancellation of bail. We ourselves had directed stay of the trial because we thought if the trial took place, the seriousness of the matter relating to grant of bail in this case would be lost and the revision application before this Court would become infructuous. Then came the application for transfer. Now that these impediments are over, we would call upon the learned Sessions Judge at Berhampur to give effect to the desire of this Court indicated in the order dated 12.5.1972 and expedite trial preferably within a period of two months from now.
8. The revision application is allowed. The order admitting to bail the opposite parties 1 to 13 made on 31.5.1972 by the Sessions Judge of Koraput at Jeypore stands cancelled. The learned trial Judge at Berhampur is now called upon to ensure that the opposite parties are taken into custody forthwith so that trial may be completed within the time indicated above. The records be transmitted by tomorrow.
B.K. Ray, J.
9. I agree.