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Nandu and Dhaneswar Naik Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1976CriLJ250
AppellantNandu and Dhaneswar Naik
RespondentThe State
Cases ReferredC. In Andh v. State of Rajasthan
Excerpt:
.....for all cases. the learned counsel for appellant contends that prosecution has failed to establish common intention of the appellant and others. his liability has to be established individually and not conjointly .where however, the charge mentions that particular act was committed by some named (individuals and all are acquitted except one, but evidence is led as against the named persons as well as the unknown persons, his joint liability with the unknown persons can still be established by invoking section 34. thus, bitu's acquittal would not affect the appellant's joint liability with mohan and chhotu who can still be found jointly liable under section 34 i. the word 'act' denotes as well a series of acts as a single act. it will however, call for a closer scrutiny of the evidence..........in any way. the learned counsel for appellant contends that prosecution has failed to establish common intention of the appellant and others. it is argued that bitu having been acquitted and one of the other brothers being dead and one having absconded; it cannot he said that prosecution has establish- ed common intention. we cannot persuada ourselves to accept such contention.for the application of section 34 i. p. g there must be evidence involving several accused persons either specifically named or some specifically named and others unnamed [in the charge. where charge specifically mentions named individuals, of whom all are acquitted except one. his liability has to be established individually and not conjointly .where however, the charge mentions that particular act was.....
Judgment:

N.K. Das, J.

1. Appellant has been convicted under Section 302/34 I. P. C, sentenced to rigorous imprisonment for life and under Sections 342/34 sentenced to rigorous imprisonment for six months; both the sentences to run concurrently.

2. Appellant Nandu, Bitu, Mohan and Obhotu are four brothers. They are living separately. Mohan is living in village Kesadfha whereas the other brothers are living in village Chirupada situated as a distance of four miles from village Kesadiha. The occurrence is said to have taken place in village Kasadiha.

The prosecution case may be stated as follows: In the forenoon of 12th November, 1972 P.W. 1, her son Dhaneswar (deceased) and her two daughters-in-law (of whom P, W 3 is one) were engaged in cutting paddy along with labourers P.Ws. 2, 4 and 5 from their land situated in Rugudibhol Chak in village Kasadiha. Mohan owns land adjacent to the said land. AH the aforesaid four brothers, Nandu (Appellant), Mohan, Bitu and Chhotu suddenly came to the spot-Mohan was holding a rope, lathi and a katari and the other three brothers were armed with axe. As soon as they came to the spot they attacked P.W. 1 (mother of the deceased) and thereafter all of them tied down Dhaneswar (deceased) with a rope and severely assaulted him as a result of which he fell down. Thereafter the assailants left the spot with the weapons. The villagers took P.W. 1 and injured Dhaneswar to the police station which is situated at a distance of 14 kilometres from the spot where P.W. 1 lodged F, I. R. (Ext. 6) on 1&-11-1972 at about 4.00 p. m, Dhaneswar was admitted in the Primary Health Centre and was treated by P.W. 8. Dhaneswar died on 14-12-1972. So P.W. 8 sent information to the police about Dhaneswar's death. The Investigating Officer, P.W. 11 visited the sopt on 13-11-1972. Inquest of the dead body was done on 14-11-1972 and the inquest report is Ext, 12. Autopsy of the dead body was conducted on 15-11-1972 by P.W. 9 and his post-mortem report is Ext. 5. After investigation police charge-sheeted all the four brothers under Sections 302/34, 342/34 and 326/34 Indian Penal Code. Mohan died during pendency of the case, Chhotu has absconded since the beginning of investigation, In the circumstances, Nandu, and Bitu stood trial on the aforesaid charges. Charge under Section 326/34, I. P.C. was made in connection with voluntarily causing grievous hurt to P.W. 1. The learned Sessions Judge has acquitted them of the said charge as . evidence was not satisfactory. Bitu has been acquitted of charges under Sections 302/34 and 342/34 I. P, C. on the ground that his name was not mentioned in the F. I. R. lodged by P.W. 1. Only Nandu has been convicted under the aforesaid sections and he is the sole appellant here,

The defence plea is of total denial and that appellant was not at all concerned with the incident,

3. Dhaneswar (deceased) was examined by P.W. 8, the Medical Officer at Tha-kurmunda Primary Health Centre on 12-11-1972, He found the following external injuries.

1. Bruise square size 1' x 1' over the right temporal region 1/2 above the upper margin of the root of the right ear,

2. Lacerated injuries 3 in numbers above the pinna of the right side on the lower Border of the square size bruise No, 1.

3. Incised wound '3/4 x 1/6' on the back of the Pinna upper side 1/3' below the upper margin.

4. Incised wound 1/3' x 1/6' over the back of the pinna 1/2 above the root on the front of pinna.

5. Incised wound 1/2 x 1/6' on the front of the pinna 1/2 below the upper margin.

6. Abrasion 3/4' x 1/2 -1/2' below the upper margin.

7. Abrasion 1/2' x 1/2' over the 4th civicle vertebra in the mid line.

8. Bruise 5 1/2' x 3/4' on the left second sterno costal joint.

9. Bruise circular 1' in diameter on the 8ith rib of the right side.

10. Abrasion 1/4' x 1/4' on the 2nd left intercostal space.

11. Abrasion with bruise 3 in number 4' x 1/2, 3' x 1/2' and 3 x 1/4 over the left knee.

12. Abrasions 3 in number 1/2 x 1/2 and 1/3' x 1/4' and 1/3' x 1/4' over the right knee.

13. Bruise 3' x 2', 5' above the left knee.

14. Fracture of the temporal bone 1' in length over the right temporal region over the bruise No. 1

According to him, injury Nos. 1 to 13 were simple in nature and except the incised wounds all might have been caused by blunt and hard weapon like lathi or blunt end of axe, The incised wounds might have been caused by the sharp weapon like an axe. Injury No. 14 was grievous in nature and might have been caused by blunt weapon, blunt end of an exe. More appropriately the square size bruise might be caused by weapon like that. The border of the Hunt end of the axe which is bit sharp might also cause the incised wounds referred to above.

At the time of his examination Dhaneswar was unconscious and was in a deep stage of coma. He was admitted as an indoor patient for treatment Ext. 2 is the bed-head ticket. He died on 14-12-1972 at 4,00 p.m. P.W. 8 sent necessary information to the Officer-in-Charge about his death. P.W. 9 the Medical Officer of Jankeswar Primary Health Centre conducted autopsy o the dead body on 15-11-1972 and he found the following injuries.

1. Swelling 3' x 2' over the right temporal region over which there was a rectangular mark 1' x 1' size.

2. Two abrasions 1' x 1' in size over the middle of the chest wall.

3. Abrasion on both the knees,

On dissection he found large haematoma below the scalp throughout the head, more marked on the right temporal region. There was comminuted fracture on the right temporal and right parietal bone through which brain materials and blood were coming out. The brain was lacerated and membranes were ruptured. The brain was full of blood. He also found fracture of the middle of the sternum bone. There was blood clot over the pericardiam.

According to the doctor cause of death was due to shock on account of haemorrah-age. He is of opinion that the head injury alone was sufficient, in ordinary course of nature, to cause death. In view of evidence of the witnesses which will be discussed later on and in view of the number of injuries and opinion of doctor, there cannot be any doubt that death of Dhaneswar was homicidal and the injuries were ante-mortem,

4. Prosecution relies on the evidence of P.Ws. 1, 2, 3, 4 and 5 along with the evidence of the two doctors, P, Ws. 8 and 9 for conviction of the appellant, P.W. 1 is the mother and P.W. 3 is the widow of the deceased. P.Ws. 2, 4 and 5 are labourers.

5. It is not disputed that appellant and his brothers, Bitu, Chhotu and Mohan have separated; Mohan is living in the village where the occurrence took place and the other three brothers have been living in village Chirupada at a distance of 4 miles, From the cross-examination of the prosecution witnesses, it is evident, that a part of the prosecution story is admitted. P.Ws. 1 to 5 have stated that they were engaged in cutting paddy from the land of deceased Mohan's land is situated adjacent to that land separated by a ridge consisting of holders. The fact of cutting of paddy is not disputed. These witnesses were cross-examined to the effect that they were cutting paddy from the land in possession of Mohan which has been denied and appellant has not been able to establish this fact. So necessary conclusion is that P.Ws. 1 to 5 were cutting paddy from land of deceased Dhaneswar.

All the aforesaid witnesses are consistent in their evidence that the four brothers came together to the field-Mohan had a rope, a lathi and a katari and the other three brothers were armed with axe. They suddenly appeared at the spot and tied down Dhaneswar's hand from back side and all of them severely assaulted Dhaneswar. As a result of such assault Dhaneswar was . severely injured and fell down on the ground. Attempt was made on behalf of the appellant to establish that he was not at all present and even if there was any such occurrence, it was only Mohan who might have assaulted. But such a plea has not at all been established nor there is any material on record except only the version of the appellant. Excepting bare suggestion to the prosecution witnesses which has been denied, there is no other material on record to this effect, It is contended on behalf of appellant that P.W. 2 says that all the four brothers assaulted with lathi and as such her evidence is to be discarded. But all the witnesses including P.W. 2 have stated that Mohan had a lathi and a Katari whereas the other three brothers were armed with axe. Considering this part of the statement of P.W. 2 and the consistent evidence of the other witnesses that the other three brothers were armed with axe, the statement of P.W. 2 that all assaulted Dhaneswar with lathi cannot be accepted. This statement of P. W- 2 can be said to be a Confusion, Even apart from her evidence the unimpeachable testimony of other witnesses is to the effect that all of them tied down Dhaneswar and indiscriminately and mercilessly assaulted him, The evidence of the doctors, P.Ws. 8 and 9 clearly establishes that Dhanes- war was severely injured, he sustained large number of injuries on vital parts of the body and as a result of the same he died. From cross-examination of P.Ws. 1 and 3 it appears that there were no other persons in the nearby fields and the jungle is very close to the spot.

P.W. 6 is the brother of the deceased. His evidence is to the effect that P.W. 3 (widow of the deceased) immediately came to him and said that all the four brothers assaulted Dhaneswar who was lying injured on the field, This witness immediately went to the field and saw his brother lying seriously injured. P.W. 1, the mother of the deceased was present there and she also told him that all the four brothers assaulted Dhaneswar after tying down his hands from behind. He found Dhaneswar in a moribund condition. P.W. 7, a co-villager says that at about 2.00 p. m,, P.W. 3 came from the field and told him and others, that her husband had been assaulted by the aforesaid four brothers. He along with the other villagers went to the spot where P.W. 1 also told them that all the four brothers assaulted her son. They found Dhaneswar lying severely injured with his hands tied down at his back, They untied the hand and gave him water.

6. Nothing has been brought out on record against the aforesaid witnesses and there is no intrinsic infirmity in their evidence. It has been, amply proved by them that all the four brothers suddenly ap peared on the field armed with deadly weapons and brutally assaulted Dhaneswar after tying down his hands at his back.

7. The learned Sessions Judge has acquitted Bitu on benefit of doubt solely on the ground that his name was not mentioned by P.W. 1 in the F. I. R. and as such it cannot be said that he was one of the assailants. No appeal has been filed by the State Government against this order of acquittal. We may observe that if (there would have been any appeal against this acquittal, we would not have subscribed to this view of the learned Sessions Judge. It is fairly settled that the F, I R. can be used only to corroborate or contradict its author and none else (See : AIR1968Ori167 : 1972CriLJ233 and : AIR1975SC757 . As there is no appeal against has acquittal, the appeal is to be considered on the basis of acquittal of Bitu. But his acquittal does not impair the position in any manner. Even on his acquittal, it is established that the appellant and his two other brothers came armed and suddenly assaulted Dhaneswar. Of them one is dead and another is absconding. Evidence against the absconding accused has been recorded according to Section 299 of Criminal Procedure Code then in force.

8. It is contended by Mr. Sinha, the learned Counsel for the appellant that as the learned Sessions Judge has disbelieved die evidence tendered by prosecution relating to assault on P.W. 1, the evidence relating to assault on Dhaneswar should also be disbelieved. This contention has no force. The maxim theists in uno falsus in omnibus' is not a rule of law, but is merely a rule of caution. It is now well settled that the Court is to examine the entire evidence carefully and must distinguish the chaff from the grain and should not discard the entire prosecution case merely on the ground that a part of the story is found to be lake. In Ramakanta Alias Ramanath Sethi v. State (1969) 35 Cut LT 400 a Division Bench of this Court after relying on the cases reported in State v. Sashibhusan (1962) 28 Cut LT 523 and Bisingi Saura v. State (1962) 28 Cut LT 337 has observed:

With regard to the question whether a witness is to be disbelieved, because part of his statement is either false or contradictory to his earlier version, the matter was fully discussed by this Court in State v. Sashibhusan (see para 13), It was observed therein that the maxim 'falsus in uno falsus in omnibus' has rot received general acceptance in different jurisdictions in India; nor has this maxim come to occupy the status of a rule of law. It is merely a rule of caution. All that it amounts to is that in such cases the testimony may be disregarded and not that it must be disregarded. The doctrine merely involves the question of weight of evience which a Court may apply in a given-state of circumstances, but it is not what may be called a mandatory rule of evidence. This principle is expressed in another form by say-in s, that the Court must be careful to examine the entire evidence and must distinguish the chaff from the grain and must not take (to an easy course of discarding the entire prosecution case merely because a part of the story is false. The same view was taken in Bisingi Saura v. State (see para 6).

In Rai Singh v. State of Haryana : 1971CriLJ1738 it has been held:

It is now well settled that in each case the Court has to appraise the evidence to see to what extent it is worthy of acceptance and merely because in one respect the court considers it unsafe to rely on the testimony of a witness it does not necessarily follow as a matter of law that it must be discarded in all other respects as well. Experience in this country has shown that in cases like the present there is a tendency on the part of interested witnesses to exaggerate the guilt of the opposite party and then the imperfection of human memory and of observation also shows that the broad rule canvassed on behalf of the appellant cannot be laid down as a safe guide for all cases. The Court has to sift the evidence with care in each case and on full consideration of all the relevant material circumstances to come to a decision, which part of the testimony of the witness to accept and which to reject.

In State of Punjab v. Hari Singh : 1974CriLJ822 it has been held that:

As human testimony resulting from widely different powers of observation and description, is necessarily faulty and even truthful witnesses not infrequently exaggerate or imagine or tell half truths, the Courts must far to extract and separate the hard core of truth from the whole evidence. This is what is meant by the proverbial saying that Courts must separate the chat from die grain'. If, after considering the whole mass of evidence, a residue of acceptable truth is established by the prosecution beyond any reasonable doubt the Courts are bound to give effect to the result flowing from it and not throw it overboard on purely hypothetical and conjectural grounds.

In Laxman v. State of Maharashtra : 1974CriLJ369 it has been observed:

Witnesses cannot be branded as liars In toto and their testimony rejected outright even if parts of their statements are demons-trably incorrect or doubtful. The astute judge can separate the grains of acceptable truth from the chaitf of exaggerations and improbabilities which cannot be safely or prudently accepted and acted upon. It is sound common sense to refuse to apply mechanically, in assessing the worth of necessarily imperfect human testimony, the maxim 'Falsus in uno falsus in omnibus.

In view of the dictum laid down above appellant's contention that as the evidence relating to assault on P. W- 1 has not been accepted by Court, the evidence relating to assault on Dhaneswar is to be discarded, has no force.

9. It is contended by Mr. Sinha that the prosecution case being that appellant and three other brothers assaulted the deceased, do whom appellant and Bitu were available for trial, and Bitu having been acquitted on benefit of doubt, appellant should also be acquitted. In this connection it is urged that the evidence implicating Bitu has not been accepted and as such the evidence relating to appellant should not be accepted. We have already observed above relating to the finding of the learned Sessions Judge about Bitu. It is not a case that appellant and Bitu were the only assailants. It has been sufficiently established by prosecution that appellant, Mohan and Chhotu were assailants. In view of credible evidence on record, even acquittal of Bitu does not make the prosecution case reasonably improbable. Therefore, we hold that even if Bitu has been acquitted, conviction of appellant is not affected in any way. The learned Counsel For appellant contends that prosecution has failed to establish common intention of the appellant and others. It is argued that Bitu having been acquitted and one of the other brothers being dead and one having absconded; it cannot he said that prosecution has establish- ed common Intention. We cannot persuada ourselves to accept such contention.

For the application of Section 34 I. P. G there must be evidence involving several accused persons either specifically named or some specifically named and others unnamed [in the charge. Where charge specifically mentions named individuals, of whom all are acquitted except one. his liability has to be established individually and not conjointly .Where however, the charge mentions that particular act was committed by some named (individuals and all are acquitted except one, but evidence is led as against the named persons as well as the unknown persons, his joint liability with the unknown persons can still be established by invoking Section 34. Thus, Bitu's acquittal would not affect the appellant's joint liability with Mohan and Chhotu who can still be found jointly liable under Section 34 I. P.C.

10. It is to be considered whether In the facts and circumstances of the case, all the persons can be convicted under Section 302,1. P.C. read with Section 34 1. P.C. According to Section 34 I. P.C. when a criminal act is done by several persons in furtherance of common intention of all, each of such persons shall be liable for that ac in the same manner as if it were done by him alone. The word 'act' denotes as well a series of acts as a single act. Such criminal fact refers to the totality of the series of acts reflecting the unity of the criminal behaviour which resulted in the offence for which each individual is to be punished. In the present case the assault was by all the brothers causing death of Dhaneswar. The strokes of fall resulted in the offence of murder. If the act of each individual was done in furtherance erf common intention to commit murder, then each one of them is constructively liable for the offence of murder even though the act of each one of them might not have resulted in causing death. If the individual act is performed in furtherance of common intention, the vicarious liability accrues. Section 34 deals with separaite acts similar or diverse by several persons. The offence is attributable to each offender, if it was dons in furtherance of common intention. In 'Chandra Majhi v. State (1966) 32 Cut LT 121 each of the accused persons determinedly came with a lathi in hand and pursued the deceased when he fled away to the bed room of P.W. 1. Three of the accused persons indiscriminately and mercilessly assaulted the deceased until he (ell down. From the facts and circumstances of the case this Court held that the accused persons developed a common intention on the spur of the moment to kill the deceased. Though it is not possible to say as to which particular stroke resulted in the death of the deceased, the acts of the accused persons ultimately resulted in death. The individual acts, having been performed in furtherance of common intention to kill, each one of them, responsible for the death of the deceased. The criminal act was, offence of murdar which finally resulted, though the achievement of that criminal act may be the action of several persons. The quintessence of the doctrine is epitomised in the dichis of the Judicial Committee to that effect-- 'They also serve who only stand and wait'. It has been observed in this case : --

Common intention' is not same or similar intention. It presupposes a prior concert and a pre-arranged plan. If follows that there must be a prior meeting of the mind. Several persons can simultaneously attack a man. Each can have the same intention, that is, intention to kill. Each can individually cause a separate fatal blow. Yet, there may not exist a common intention if there was no prior meeting of the mind. In such a case, each would the individually liable for the injuries he causes. None can be vicariously convicted for the act caused by the other. Ti the prosecution fails to prove that the blow of a particular offender caused murder, he cannot be convicted of that offence. The partition between the limits of common intention and same or similar intention is, however, thin though the distinction is real and substantial and, if overlooked, it may result in miscarriage of justice.

This is, however not to say that the prearranged plan need necessarily be an elaborate one. Nor is it necessary that long interval of time must elapse between the meeting of the mind and the perpetration of the act. The common intention may develop and be formed suddenly. To illustrate, when a piton asks others to help him to kill the deceased and thus other persons, either by their acts or words, assault him or join with him in the assault, common intention is established. The common intention in such a case is formed on the spur of the mosnent. Existence of prior concert is to be determined with reference to the facts and circumstances of each case. The conduct preceding the commission of offence, the nature d injuries, the manner of causing them, the seat of the injury, the conspiracy before the offence is committed and the subsequent conduct, such as, running away together, are some of the important matters to be taken into consideration for deducing the existence of common intention. In other words, each case should depend upon its own facts and circumstances to judge whether there was common intention or same or similar intention.

In Sat Kumar v. State of Haryana : 1974CriLJ345 it has been held:-.

There is no rule of law that if the court acquits some of the accused on the evidence of a witness raising doubt with regard to them the other accused against whom there is absolute certainty about his complicity in the crime based on the remaining credible; part of the evidence of that witness must be acquitted. It will however, call for a closer scrutiny of the evidence and the court must feel assured that it is safe to rely upon the witness for the conviction of the remaining accused.

In that case Supreme Court has negatived the finding of the High Court that as one accused was acquitted on the testimony of witness, the same reasoning should apply to the case of other accused and no conviction can be based on testimony of the witness.

According to the principles laid down above, the contention that Bitu having been acquitted, conviction of appellant cannot stand has no force.

11. It is then contended by Mr. Sinha that from the injuries inflicted on the deceased it cannot be said that the assailants intended to kill him, and as such the offence should be culpable homicide not amounting to murder instead of murder. In view of the number and nature of injuries inflicted by the assailants in furtherance of common intention of all, these injuries were sufficient in the ordinary course of nature to cause death. Accordingly the offence must be hold to be murder within clause 'thirdly' of Section 300 read with Section 34 I. P, C. In Andh v. State of Rajasthan : 1966CriLJ171 it has been held:-.

The third clause of Section 300 I. P. C views the matter from a general stand point. It speaks of an intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death. Here the emphasis is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary way of nature. When this sufficiency exists and death follows and the causing of such injury is intended, the offence is murder. Sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused, and sometimes both are relevant. The intentional injury which must be sufficient to cause death in the ordinary course of nature, is the determinant factor.

In a trial for an offence of murder under clause thirdly of Section 300 read with Section 34, I. P.C. it is always a question of fact whether the accused shared a particular knowledge or intent, One has to look for a common intention, that is to say, some prior concert and what that common intention is. That there should be an appreciable passage of time between the formation of the intent and the act is not necessary for common intention may be formed at any time. Then one must look for the requisite ingredient that the injuries which were intended to be caused were sufficient to cause death in the ordinary course of nature. Next one must see If the accused possessed the knowledge that the injuries they were intending to cause were sufficient in the ordinary course of nature to cause death. When all these circumstances are established and death was in fact, caused by injuries which were intended to be caused and which were sufficient in the ordinary course of nature to cause death, the resulting offence of each participant would be murder. In view of the above dictum of the Supreme Court, the aforesaid contention of the appellant is devoid of merit.

12. All the contentions raised by the appellant fail, In the result the appeal is dismissed.

S.K. Ray, J.

13. I agree.


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