G.B. Patnaik, J.
1. These four appeals are directed against the conviction and sentence passed by the learned Sessions Judge, Dhenkanal, in Sessions Trial No. 16-A of 1979 and all the appeals being against the common judgment they have been heard together and are being disposed of by this judgment.
2. There are eight accused-appellants in all. Six of them have preferred Criminal Appeal No. 127 of 1981. Two other accused persons have preferred Jail Criminal Appeals Nos. 162 and 163 of 1981. Jail Criminal Appeal No. 164 of 1981 is at the instance of accused Upasi Behera who is also appellant No. 5 in Criminal Appeal No. 127 of 1981. The accused-appellants have been convicted under different sections of the Penal Code and sentenced to different terms of imprisonment thereunder in the following manner :
-------------------------------------------------------------------------------------------Name of the accused-appellant Offence for which convicted Sentence imposed.-------------------------------------------------------------------------------------------Cr.A. 127 of 1981. ------------------1. Pitambar Dehury Section 147, I.P.C. R.I. for one year Section 148, I.P.C. R.I. for two yearSection 337, I.P.C. R.I. for Three months. Section 302/149, I.P.C R.I. for life2. Manu Behera. Section 147, I.P.C. R.I. for one yearSection 148, I.P.C. R.I. for two yearSection 302/149, I.P.C R.I. for life3. Dambaru alias ChemuruBehera. Section 147, I.P.C R.I. for one year.
Another accused, namely, Raibari alias Abala Behera who has not preferred any appeal was convicted but was sentenced to rigorous imprisonment for the period already undergone.
3. According to the prosecution case, on 18-6-1979, at about 6.30 a.m., deceased Jogeswar Pradhan along with his brother Brundaban Pradhan (P.W. 10), Pramod Kumar Pradhan (P.W. 1), Baishnab Pradhan (P.W. 2), Kumud Chandra Pradhan (P.W. 6), Ratnakar Naik (P.W. 5), Trilochan Pradhan, Adwait Pradhan, Bhanu Behera and Palau Pradhan - not examined in the case - went to Barahakani Chak land of village Dandasingha and reached the said place at 7 a.m. They had taken with them five ploughs with bullocks to cultivate the land in question. The land of Budhia Behera (father of accused Haguru and Sankar) adjoins this land on the northern side. Deceased Jogeswar had taken with him the map of the village, the Record-of-Rights and certain instruments to get the land measured and demarcated. When the deceased arrived at the spot, he found accused Haguru sowing crop on his land and his minor sons Kama and Bipin and his brother, accused Sankar were ploughing the land with bullocks. Deceased Jogeswar then questioned as to why Haguru was cultivating the land and demanded that he should leave the place immediately. Haguru then asked his sons and brother to take away the ploughs to their own land at the northern end when accused Upasi and Abala reached the spot and asked Haguru to continue to cultivate the land which he was cultivating earlier. The deceased advised Haguru to call Bhadraloks and get the land measured. Haguru and his brother Sankar then went to call Bhadraloks. Shortly thereafter the other accused persons, namely, Dambaru, Manu, Rabindra, Digambar and Pitamber came to the spot. When these persons came to the spot excepting accused Dambaru who had a Gupti in his hand, others had no weapon. Sankar came to the spot with his father a short while after. Haguru reached the spot at last. Sankar told the deceased that he had called those persons as Bhadraloks to consider the claim. The deceased then told him that he would not accept those persons as Bhadraloks. Accused Pitambar became furious when they were rejected to act as Bhadraloks by the deceased. He directed Dambaru to catch hold of the deceased. By that time Pitambar was armed with a sword and he also took out a knife from his waist. Pitambar threw a stone which hit the chest of Brundaban and he fell down. Accused Dambaru assaulted Brundaban who was lying on the ground with a Gupti on the right side of his face and head. Sankar
Section 148, I.P.C. R.I. for two years.
Section 324, I.P.C. R.I. for two years.
Section 302/149, I.P.C. R.I. for life
4. Digambar Dehury Section 147, I.P.C. R.I. for one year
Section 148, I.P.C. R.I. for two year
Section 302/149, I.P.C. R.I. for life.
5. Upasi Behera. Section 147, I.P.C. R.I. for one year
Section 148, I.P.C. R.I. for two year
Section 324, I.P.C. R.I. for two year
Section 302/149, I.P.C R.I. for life
6. Rabindra alias Rabinarayan Section 147, I.P.C. R.I. for one year
Behera. Section 148, I.P.C R.I. for two year
Section 302/149, I.P.C R.I. for life.
Jail Cr. A. 162/81.
7. Sankar Behera. Section 147, I.P.C. R.I. for one year
Section 148, I.P.C. R.I. for two year
Section 302/149, I.P.C. R.I. for life.
JailCr. A. 163/81.
8. Haguru Behera. Section 147, I.P.C. R.I. for one year
Section 148, I.P.C. R.I. for two year
Section 302, I.P.C. R.I. for life.
assaulted Brundaban with a lathi. Mann brought a Tabala, Sankar brought a lathi, Rabi brought a lathi, Haguru brought a tangia, Digambar brought a tangia and Upasi brought a small axe from a nearby bush. Accused Upasi then dealt a blow with the tangia on the right leg of Brundaban. Accused AtoaBaKwho has riot appealed) dealt a kick Girdle chest of Brundaban. Pitambar directed the other accused persons to chase and catch hold of the deceased who was trying to retreat. All the accused persons then surrounded the deceased. The deceased was also whirling a lathi which he had in his hand to save himself from the clutches of the accused persons. Pitambar then threw a big stone which hit the chest of the deceased as a result of which he fell down. Manu dealt a blow with a tangia near the left arm-pit and other accused persons assaulted him mercilessly on different parts of the body with the weapons which they were holding and accused Abala was throwing stones at the deceased Seeing the situation, informant Pramod Kumar raised alarm. Accused Dambaru then dealt a lathi blow on the left shoulder of the informant. Dambaru directed his brother Manu to bring the axe to kill him, but the informant ran away. Accused Rabi also tried to catch-hold of the informant but he slipped away. The accused persons then decided to chop off the head of the deceased and carry it. Accused Haguru then cut off the head of the deceased with the tangia held by him and Upasi held the cut head and all the remaining accused persons followed Upasi. The injured Brundaban was removed to the hospital first at Tainsi and then at Angul. Haguru and Sankar brought the cut head to the court of the Subordinate Judge, Angul and kept it near the court where they were arrested by the police. The informant (P.W. 1) was by that time present in Purunakota Police Station when Baishnab (P.W. 2) informed him that the accused persons had taken away the head of his father. After getting the information from P.W. 1, investigation started and during the investigation, the headless body of the deceased and the cut head were sent to the hospital for post mortem examination. After completion of investigation, police submitted charge-sheet against the accused persons on different sections.
4. All the nine accused persons were charged Under Sections 147 and 148, Penal Code for being members of an unlawful assembly with the common object of causing the death of Jogeswar and to assault Baishnab and Pramod. Five of them, namely Pitambar, Dambaru, Sankar, Upasi and Alaba alias Raibari were charged Under Section 307/34, Penal Code for the alleged assault on Brundaban. Four of the accused persons namely, Haguru, Manu, Digambar and Rabindra were charged Under Section 307/149, Penal Code, for assault on Brundaban. Seven of them, namely, Haguru, Sankar, Dambaru, Manu, Digambar, Rabindra and Pitambar were charged Under Section 302/34, Penal Code, for causing the murder of Jogeswar. Two of them, namely, Upasi and Raibari were charged Under Section 302/149, Penal Code, for causing the death of Jogeswar. Accused Rabindra was also charged Under Section 337, Penal Code for causing hurt to Baishnab and accused Pitambar was charged Under Sections 323 and 337, Penal Code, for causing hurt to the informant Pramod Kumar and causing hurt to Jogeswar by throwing a stone. Accused Upasi and Raibari were charged Under Section 504, Penal Code, for intentionally insulting Pramod Kumar, Baishnab and Jogeswar.
At the outset, it may be observed that the learned Sessions Judge did not apply his mind while framing the charges and has not bestowed due attention. Needless to say, on the ground of defective framing of charges, accused are acquitted even in gruesome cases of murder. It is, therefore, meet the proper that the Sessions Judge should take utmost care while framing charges leaving no room for grievance to be made by accused later on. It was necessary to make these observations in the case since at the hearing the counsel for the appellants only made some submission on the ground of defect of charges, not being able to assail the oral testimony of the eye witnesses.
5. The defence of accused Haguru was that the deceased was trying to dispossess him forcibly from his land and with that object aimed a gun at him. While he was loading the gun, Haguru cut off his head in self-defence. The defence of the other accused persons was one of complete denial.
6. The learned Sessions Judge begins discussion of the evidence by indicating the requirements of an offence Under Section 302/149, Penal Code, though there was no charge Under Section 302/149 against all the accused persons. This shows as to how the Sessions Judge has not applied his mind to the charges framed. The learned Sessions Judge who framed the charges did not apply his mind and scan thefact to frame appropriate charges and the learned Judge who tried the case also had not been careful to look at the charges which have been framed against the accused persons. Be that as it may, we find from the evidence on record that there were six eye-witnesses to the occurrence, namely, P.Ws. l, 2,4, 5, 6 and 10. The prosecution also relied upon the alleged extra-judicial confession made before P.Ws. 7 and 8. That apart, the circumstance of Haguru and Sankar taking the cut head of the deceased and producing the same before the Subordinate Judge has also been relied upon. That the spot where the occurrence took place was in possession of the deceased has been well proved through the prosecution witnesses, namely, P.Ws. l, 2, 4 and 5. The cross-examination of these witnesses does not in any manner throw any doubt on their testimony. As a matter of fact Mr. Dey, the learned Counsel appearing for the appellants in Criminal Appeal No. 127 of 1981, fairly conceded that in effect there had been no cross-examination. The defence had examined one witness, P.W.I, to prove the possession of the accused persons over the land, but his evidence does not stand a moment's scrutiny. In our opinion, therefore, the learned Sessions Judge was wholly justified on the evidence on record to come to the conclusion that deceased Jogeswar was in possession of the disputed land.
7. So far as the unfolding of the prosecution story regarding the assault on Jogeswar and his fellow-men by the accused persons is concerned, we will scrutinize the evidence of eye-witnesses to the occurrence who are P.Ws. 1, 2, 4, 5, 6 and 10. It is established from the evidence on record that P.Ws. 1,2 and 10 had sustained injuries which strengthens their version that they were present at the time of occurrence. P.W. 1, the son of deceased Jogeswar, was in the field at the time of occurrence. He fully narrates the incident as to how Jogeswar questioned Haguru as to why he was cultivating the land ; sons of Haguru taking away the ploughs on being asked by Haguru ; Haguru and Sankar went out to call Bhadraloks ; Dambaru, Manu, Rabindra, Digambar and Pitambar arrived at the spot shortly thereafter and then the actual assault took place. According to him Pitambar threw a stone which hit the chest of Brundaban and Brundaban fell down. Then Dambaru assaulted Brundaban with a Gupti on the right side of his chest. Then Sankar assaulted Brundaban with a lathi. Then other accused persons, namely, Manu, Sankar, Rabi, Haguru, Digambar and Upasi brought different weapons from a nearby bush. Accused Upasi then dealt a blow with a tangia on the right leg of Brundaban. Then accused Pitambar directed other accused persons to catch-hold of his father and when his father was trying to retreat, the accused persons surrounded him. Accused Pitambar threw a big stone at the chest of Jogeswar as a result of which Jogeswar fell down. Then accused Manu dealt a blow with a tangia near the left armpit. Accused Haguru dealt two blows with a tangia on the left side of the chest. Accused Digambar dealt a tangia blow on the left thigh. Accused Pitambar dealt a knife blow on the left side of the head. Accused Dambaru dealt a blow with a Gupti on the face and another blow on the left side of the face. Accused Sankar and Rabi were continuously assaulting with lathis. Accused Upasi dealt tangia blows. This version of P.W. 1 has been fully corroborated by other witnesses, namely, P.Ws. 2, 4, 5, 6 and 10. Nothing has been brought out in the cross-examination to discredit them in any manner. All the aforesaid eye-witnesses have consistently narrated the prosecution case as to the manner of assault, the weapons of assault and the different pans of the body the accused persons assaulted in so far as the assault on deceased Jogeswar, Brundaban and other persons is concerned. Mr. Dey, the learned Counsel for the appellants as also Mr. Das, the learned Defence Counsel for the appellants in the Jail Criminal Appeals, could not place any material before us from which one can disbelieve any of the prosecution witnesses. The prosecution version as unfolded through these eye-witnesses must be held to be wholly acceptable and, therefore, we are not in a position to come to a different conclusion from the one reached by the learned Sessions Judge. The learned Counsel appearing for the appellants, therefore, rightly conceded that they were not in a position to assail the evidence against these appellants, as analysed by the learned Sessions Judge. But Mr. Dey, the learned Counsel for the appellants, raised two contentions, namely, (i) a bare look at the cross-examination of the prosecution witnesses would establish that the case had been handled by an inexperienced raw hand and, therefore, it must be held that the accused had not been given reasonable opportunity to defend themselves and (ii) the conviction of the appellants Under Section 302/149, Penal Code, was illegal since there was no charge against all the appellants under that section.
8. So far as the first contention is concerned, Mr. Dey, the learned Counsel, has submitted that the poverty should not be a ground for an accused to go undefended. Provision, therefore, has been made in the Criminal P.C for engagement of State Counsel, where the accused is not in a position to engage counsel to defend for himself. But the said provision should not be a mere formality but should be followed in its true spirits and the court should consider the question of engagement of a State Defence Counsel with some amount of seriousness so that the accused is really defended by a counsel. According to Mr. Dey, a bare look at the cross-examination of the prosecution witnesses in the present case shows that the counsel had no idea of cross-examination and practically the entire prosecution version as unfolded through evidence-in-chief has gone unchallenged in cross-examination. In this view of the matter, it must be held that the accused has been denied of a reasonable opportunity of defending himself. Undoubtedly, there is some force in Mr. Dey's contention that the accused should get a fair trial and while taking recourse to the provisions of the Criminal P.C. for engaging a State Defence Counsel where the accused is unable to engage one, sufficient care should be taken by the court to give it to an able hand. In fact in the case of Ranchod Mathur Wasawa v. State of Gujarat : 1974CriLJ799 Krishna Iyer, J., observed as follows :
We find no reason to disagree with the findings of guilt and refuse special leave. Even so, we are disturbed, having a look at the proceedings in this case, that the Sessions Judges do not view with sufficient seriousness the need to appoint State Counsel for undefended accused in grave cases. Indigence should never be a ground for denying fair trial or equal justice. Therefore, particular attention should be paid to appoint competent advocates, equal to handling the complex cases, not patronising gestures to raw entrants to the Bar. Sufficient time and complete papers should also be made available, so that the advocate chosen may serve the cause of justice with all the ability at his command.
In fact, in Orissa a set of Rules have been framed called 'Appointment of State Defence Counsel Rules, 1974' and under the said Rules, a person becomes eligible to be appointed as State Defence Counsel in sessions cases, only if he has been in practice for not less than seven years or he had been a member of the State Judicial Service for not less than seven years. Rule 8 of the said Rules provides that the appointment of State Defence Counsel shall be made, sufficiently ahead of the commencement of the trial and Rule 9 provides furnishing of a brief of the case free of cost at least seven days before the commencement of the trial. Thus the engagement of a State Defence Counsel is regulated by the aforesaid provisions and, therefore, it could never go to a raw hand as observed by the learned Judge of the Supreme Court in the aforesaid case. We also called for some information from the Bar Council to find out the exact period of practice of the Counsel who had been engaged as State Defence Counsel in this case and we found that he had put in a sufficient number of years of practice. We have checked up from the order sheet and are also satisfied that the engagement had been made sufficiently ahead of the commencement of the trial. In that view of the matter, we are not in a position to accept Mr. Dey's contention that there has been a denial of opportunity to the accused persons to be appropriately defended in the case. Mr. Dey placed reliance on two decisions in support of his contention, namely AIR 1963 Kerala, 54 : 1963 (1) Cri LJ 175 (Kunnummal Mohammed v. State of Kerala) and AIR 1942 Pat 90 : 1942 (43) Cri LJ 36 (Dikson Mali v. Emperor). We have carefully read the aforesaid two decisions, but in our opinion those decisions have no application to the present case and even in those decisions certain observations were made as to the desirability of selecting appropriate lawyers for the State Defence. The learned Judges of the Patna High Court in the aforesaid Patna case held that the selection should be made from amongst young men of marked ability. There is no whisper from which the selection in this case can be said to be improper. In the Kerala case, referred to supra, the learned Judges gave a note of caution in the matter of selection of the counsel engaged at State expenses to defend the accused. Their Lordships held :
Before we part with the case we have to strike a note of warning against the practice of some of the Sessions Judges appointing raw and inexperienced juniors to defend the accused in capital cases. If however, such inexperienced advocates alone are available to defend such unfortunate accused, the court has a primary duty to come to the aid of the accused by putting timely and useful questions and warning the advocates from trading on dangerous grounds.
But we are afraid, in the present case nothing has been shown from which it can be deduced that the counsel engaged was either a raw or inexperienced one. On the other hand, as we find in the present case, the counsel is fairly experienced and, therefore, this decision does not help Mr. Dey in any manner. Having examined the records of the case we are satisfied that the engagement of the lawyer to defend the accused at State expense has been made strictly in accordance with the Rules for the purpose and was also made sufficiently ahead of the date of hearing and, therefore, there is no infirmity in the same nor can the accused be said to have been prejudiced in any manner.
9. We would now examine the correctness of the second submission of the learned Counsel for the appellants. The Supreme Court and various High Courts have considered as to the effect of absence of a charge or defect in charge how far vitiates the conviction. In one of the earliest cases reported in : 1956CriLJ291 (Willie (William) Slaney v. State of Madh Pra), it was held :
Sections 34,114 and 149 of the Penal Code provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention ; 'and the charge is a rolled-up one involving the direct liability' without specifying who are directly liable and who are sought to be made constructively liable.
In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence, without a charge, can be set aside, prejudice will have to be made out. In most of the cases of this kind, evidence is normally given from the outset as to who was primarily responsible for the act which brought about the offence and such evidence is of course relevant.
In this case in the majority judgment, their Lordships explained and distinguished the two earlier decisions of the Court reported in : 1955CriLJ721 (Nanakchand v. State of Punjab) and : 1955CriLJ1004 (Surajpal v. State of U.P.).
In the case of K.C. Mathew v. State of Travancore-Cochin : 1956CriLJ444 , repelling a contention raised on behalf of the accused that they have been prejudiced for non-framing of a charge, the Supreme Court held :
We are satisfied that the charge neither caused, nor could have caused, prejudice. The body of the charge set out the fact that the accused 1-29 formed an unlawful assembly and stated the common object ; and then the charge specified in detail the part that each accused had played. In the circumstances, each accused was in a position to know just that was charged against him because once the facts are enumerated the law that applies to them can easily be ascertained ; and in this particular case it was just a matter of picking out the relevant sections from among the ten mentioned.
There is nothing in this objection :....
In the very same judgment, the Court also further observed :.. but the fact that the objection was not taken at an earlier stage, if it could and should have been taken, is a material circumstance that will necessarily weigh heavily against the accused particularly when he has been represented by counsel throughout.
In the case of Khemasil Rout v. State of Orissa (1974) 40 Cut LT 428, a learned Judge of this Court examined the provisions of Sections 143 and 149 of the Penal Code and held :
The law is well settled that the only test to decide whether a conviction can be sustained or not is to find out whether the absence of such a charge has resulted in prejudice to the accused persons. Here, in this case, there was a specific charge Under Section 148, Indian Penal Code. The common object also has been specified. The petitioners therefore cannot complain that they had no notice of the ingredients of the offence Under Section 149, Indian Penal Code. No prejudice has therefore resulted to the accused-petitioners.
The learned Judge then referred to the earlier decision of this Court reported in (1956) 22 Cut LT 145 : 1956 Cri LJ 1083 (Madanmohan Mohapatra v. State) and held :
It is therefore, that in every case where such a question arises, the only consideration which should weigh with the Courts is whether the accused would in any way be prejudiced if he is convicted under the substantive section read with Section 149, Penal Code, where the charge is only for the substantive offence.
Ultimately, it was held :
In the result, therefore, no exception can be taken to the conviction of the petitioners Under Section 324/149, Penal Code although Section 149 had not been added to the charge Under Section 326, Penal Code framed against them.
In the case of Kale Balaswamy v. State of A.P. 1981 Cri LJ 1710, a Division Bench of the Andhra Pradesh High Court considered the question of defect of charges. Their Lordships held :
It has been held in number of cases that in the absence of prejudice there is no legal bar to the recording of a conviction Under Section 302 read with Section 149 of the Penal Code even when the accused was charged Under Section 302 read with Section 34 of the Penal Code or vice versa....
Applying the aforesaid principle to the charges framed against the accused persons, it is clear that all of them were charged Under Section 148, Penal Code, of being members of unlawful assembly in prosecution of the common object of causing the death of Jogeswar. They were also charged Under Section 302/34 for committing the murder of Jogeswar by causing his death intentionally in furtherance of their common intention. The gravamen of the charges which were made against the accused persons was that they formed an unlawful assembly the common object of which was to kill Jogeswar and in prosecution of the said common object all of them armed with weapons assaulted Jogeswar as a result of which Jogeswar died. In this view of the matters, it cannot be said that they were prejudiced in any manner being convicted Under Section 302/149 even though all of them were not specifically charged under that section. Each of the accused persons had full notice of all the ingredients of the offence Under Section 149 which they had to meet and cannot complain of any prejudice. In our view, therefore, the contention of the learned Counsel for the appellants on this score has no force.
10. But from an analysis of evidence, we find that the only role ascribed to accused Rabindra (one of the appellants in Criminal Appeal No. 127 of 1981) and Sankar (appellant in Jail Criminal Appeal No. 162 of 1981) is that Rabindra assaulted with a lathi and Sankar assaulted with a lathi but the witnesses, namely, P.Ws. 1,2,4 and 5 who are stated to be the eye witnesses to the occurrence do not say as to which part of the body of Jogeswar they had assaulted. The medical evidence of P.W. 15 who had conducted the autopsy of the body of Jogeswar without the head, as well as the evidence of P.W. 21 who had conducted the autopsy of the cut head of the deceased, does not disclose any injury which could be caused by a lathi. P.W. 15 found as many as eleven injuries on the body and all of them were incised wounds which could be caused by sharp cutting weapon like tangia or tabala. Similarly, P.W. 21 also found five injuries on the head but all the injuries were incised wounds. In this view of the medical evidence, the assault by accused Rabindra and Sankar by lathi cannot be believed and, therefore, both Rabindra and Sankar are entitled to be acquitted of the charge Under Section 302/149, Penal Code. So far as their conviction Under Sections 147 and 148, Penal Code, is concerned, the same would however, be sustained and the sentence passed thereunder must be upheld.
11. In the ultimate result, therefore, the conviction and sentence of appellant Rabindra alias Rabinarayan Behera in Criminal Appeal No. 127 of 1981 Under Section 302/149, Penal Code, are set aside and he is acquitted of that charge. Similarly, the conviction and sentence of appellant Sankar Behera in Jail Criminal Appeal No. 162 of 1981 Under Sections 302/149, Penal Code, are also set aside and he is acquitted of the said charge. The conviction and sentence of these two appellants under other sections of the Penal Code as also the conviction and sentence of all other appellants on all the charges against them are confirmed. Criminal Appeal No. 127 of 1981 and Jail Criminal Appeal No. 162 of 1981 are accordingly partly allowed and Jail Criminal Appeals Nos. 163 and 164 of 1981 are dismissed.