STATE OF ORISSAversusARJUN DAS AGRAWAL AND ANR.

A                               STATE OF ORISSA
                                         v.
                      ARJUN DAS AGRAWAL AND ANR.

                                AUGUST 13, 1999

B                  [G.T. NANAVATI ANDS.~. PHUKAN, JJ.]


          Criminal Law

          Penal Code, 1860-Section 34-Common intention-Accused 'A ' &
C   'M' among others convicted by trial court-Acquittal by High Court-
    Participation by 'M' proved by eye witnesses-Held, acquittal by High Court
    erroneous.

           Common intention-No evidence regarding participation of 'A '-Only
    evidence of instigation-Held, no inference can be drawn that he had common
D   intention of causing death of the deceased-Acquittal by High Court upheld

           Respondents along with 14 others were tried inter-alia for the offence
    of murder of one D. Sessions Court convicted the respondents among others
    under Section 302 read with Section 149 IPC. On appeal High Court acquitted
E   the Respondents while convicting the others. The High Court held that the
    conviction of respondents was not sustainable as the evidence of Prosecution
    is not corroborated by medical evidence, as against them.

          In appeal to this Court the State relying on the evidence of PWsl to
    4 sought for the conviction of appellants. PWl wife of the deceased made a
F   specific statement that accused pushed her back when she tried to approach
    one 'D' who was assaulting her deceased husband. According to her, accused
    instigated other accused to kill the deceased. The deposition of PWl was
    corroborated by PWs 2-4. The respondents defended the appeal by pointing
    out the contradictions in the evidence.

G        Allowing the appeal partly, the Court

          HELD : 1. It is found from the evidence on record as extracted above
    that accused 'M' went to the house of the deceased along with other accused
    persons where accused 'D' gave knife blows to the deceased. It is also found
    that the accused-respondent 'M' also prevented PWl, wife of the deceased
H                                       442
                   STA TE OF ORIS SA v. A.O. AGRA WAL                     443

for rescuing her husband as she was pushed by accused-respondent 'M' and         A
she fell down. From the evidence of PW2, it is found that the accused-
respondent 'M' caught hold of tuft of beard of the deceased. The evidence on
record is sufficient to conclude that in the criminal act namely giving fatal
blows to the deceased accused-respondent 'M' actively participated in the
said criminal act in furtherance of the common object, namely to cause death     B
of the deceased. The High Court erred in allowing the appeal of accused 'M'.
'M' is convicted under Sec.263/34 IPC and sentenced to undergo RI for life.
                                                              [450-C-D-E-F)

      2. From the evidence on record it is found that accused-respondent 'A'
never went inside the house of the deceased nor took any part in the             C
commission of the murder. He only instigated by shouting at the other
accused persons. There is nothing in evidence to show that due to his
instigation more blows were given by the accused persons. Therefore, no
inference can be drawn that this accused-respondent had common intention
of causing death of the deceased or that he actually participated in the
criminal act. The acquittal of this accused by High Court is upheld.             D
                                                           [450-G-H; 451-AJ

      3. It is a settled position of law that Section 34 IPC does not create a
distinct offence and it is the participation of the accused that the intention
of committing crime is established and Section 34 IPC is attracted. To rope
in a person with the aid of Section 34 IPC, prose.:ution has to prove that the   E
criminal act was done by actual participation of more than one person' and
that the said act was done in furtherance of common intention of all engaged
at a prior concert. f450-BJ

     Mahabir Gope v. State of Bihar, (1963) 3 SCR 331; Jagir Singh v. State
of Punjab, (19671 3 SCR 256 and Bharwad Mepa Dana & Anr. v. State of             F
Bombay, [1960) 2SCR 172, referred to.

     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 5
of 1993.

      From the Judgment and Order dated 27.J .87 of the Orissa High Court        G
in Crl. A. Nos. 72 and 73 of 1983.

      Raj Kumar Mehta for the Appellant.

      U.R. Lalit, Ajay Bhalla and P.K. Jain for Respondent No. I.

      T. N. Singh, (A.C.) for Respondent No. 2.                                  H
    444                      SUPREME COURT REPORTS [1999) SUPP. I S.C.R.

A         The Judgment of the Court was delivered by

           PHUKAN, J. Sixteen persons were booked for trial under Sections 302/
    149, 302/34, 341/149, 449, 451/34, 427/34 and 323 Indian Penal Code for causing
    death of deceased Bhagirathi Panda. The Sessions Judge, Koraput in Sessions
    Case No. 134/85 by judgment dated 2nd April, 1986 after appreciation of the
B   evidence of 16 witnesses for prosecution and seven witnesses of ·defence
    came to the finding that the deceased met with homicidal death and accordingly
    convicted accused Dillip Kumar Chand under Section 302 l.P.C., accused
    Kishanlal Kamini, Manmohan Das alias Manu Bangali, Prafulla Kumar Pradhan
    and Arjun Das Agrawala under Section 302/149 I.P.C. The trial court also
C   found accused Radheshyam Agrawala, Uttam Kumar Behra, Devi Misra, Babuli
    alias Sudhansu Sekhar Das guilty and convicted them under Sections 451 and
    427 I.P.C. Other accused persons were found not guilty and acquitted them.

         Accused Dallip. Kumar Chand was sentenced to death. Accused Kishanlal
    Kamini, Prafulla Kumar Pradhan, Manmohan Das alias Manu Bangali and
D   Arjun Das were sentenced to undergo imprisonment for life. The trial court,
    however, sentenced Radheshyam Agrawala, Uttam Kumar Behera, Devi Misra,
    Babuli alias Sudhansu Sekhar Das to rigorous imprisonment for one year.

           The Division Bench of the High Court in Death Reference No. 1of1986
    and Criminal Appeal Nos. 72 to 74, 81,82 and 88of1986 by judgment dated
E   27. 1.1987 allowed the appeals of Arjun Das Agarwal and Manmohan Das and
    weriacquitted. The death reference and appeal of Dillip Kumar Chand were
    partly allowed and he was convicted under Section 302/34 IPC and his death            \
    sentence was converted to rigorous imprisonment for life. The appeals filed
    by Prafull Kumar Pradhan, Kishanlal Kamini, Radheshyam Agarwal, Devi
F   Prasad Misra, Babuli @ Sudhansu Sekhar Das arid Uttam Kumar Behera were
    dismissed.

         The State of Orissa has filed the present appeal in respect of acquittal
    of Manmohan Das and Arjun Das Agarwal.

G    . The occurrence took place in the night of 17th July, 1982 at about 10.00
   p.m, The deceased was running a hotel at his residence at village Narla road
 . and at· the time of occurrence he closed his business and was taking the
  ·.accounts from the hotel boys. At about 10.00 p.m. in the night of occurrence
   some persons knocked at the door of hotel and asked for meals but the              1



   deceased told them that Chapati would not be available and they could be
H served with rice. As soon as hotel boy opened the door accused Devi Misra,

    '·
        STATE OF ORISSA ~r .(\,D. AGRAWAL [S.N. PHUKAN, J.]               445
Babuli alias Sudhansu Das, Uttam Behera and Radheshyam Agrawala ~ent A
inside the hotel and immediately picked up quarrels with the deceased.
Radhamani Panda w/o deceased rushed in and tried to arrange for the food
for the above persons. She took her husband into the adjoining room. Though
food was served in two plates, the above persons broke the chairs, tables,
plates and tore out the electric wirings as at that time there was no supply
of electricity. At that time wife of the deceased heard the cry of pain from the B
adjacent room and she rushed inside the room. She saw that her husband had
been stabbed on his belly. Accused Dillip Chand was holding a knife and
along with Kishanlal Kamini was trying. to drag the deceased from out of the
room. Accused Prafulla Kumar Pradhan also was man-handling the deceased
and when she tried to rescue her husband, accused Manmohan Das pushed C
her back. All the four accused dragged the deceased out of the room to the
verandha and the accused Dillip Chand gave 3-4 blows. Accused Arjun Das·
Agrawal standing on the road was instigating the assailants to finish the
victim soon. Other accused persons namely Rambilash Agrawala, Motilal
Agrawala, Madan Lal Agrawala, Santosh Kumar Kamani, Santosh Mishra,
 Puspak Biswal and Hajarilal Lal Agrawala surrounded the deceased while he D
 was being assaufted by accused Dillip Chand and his associates. The wife
 of the deceased and other persons rescued the deceased and carried him back
 into the house.

      Radhamani carried her deceased husband to Narla Hospital and she also      E
sent information to the Narla Police Station. The Asstt. Sub-Inspector of the
said Police Station reached at the hospital and took the First Information
Report. The Doctor attending the injured advised that he should be immediately
removed to the hospital at Bhawanipatna and in the same truck he was carried
to Bhawanipatna Hospital and on reaching the hospital he was declared dead.
                                                                                 F
      In this appeal filed by the State we have to examine whether the orders
of acquittal passed by the Division Bench of the High Court in respect of two
accused respondents namely Manmohan Das @ Manu Bangali and Arjun
Das Agarwal were based on the proper appreciation of evidence on record
or not? Both the above accused-respondents along with others were charged        G
under Sections 302/149 and 302/34 IPC ..

     The case of the prosecution rests mainly on the evidence of Radhamani
Panda-PWI wife of the deceased, Kailash Chandra Panda-PW2 who was
having a tea stall on the verandah of the hotel of the deceased, Baikuntha
Panda-PW3 brother of PW2 who had got betel nut shop on the verandah of           H
    446                      SUPREME COURT REPORTS (1999) SUPP. l S.C.R.

A the hotel of the deceased and Bhaskar Panda-PW4 who was the cook in the
    hotel of the deceased.

          Both the courts below believed the above eye witnesses. In fact the
    High Court has recorded after carefully going through the evide,nce of the
    above eye witnesses that they were natural, competent, trustworthy and
B   reliable witnesses. According to the High Court, their evidence finds
    substantial corroboratio~ from the medical evidence and; therefore, the trial
    court rightly placed reliance on their evidence.

           We have also been taken through the evidence of the above witnesses
C   by the learned counsel for the appellant, Mr. Mehta and we entirely agree with
    the findings of the trial court as well as the High Court. Though, Mr. T.N.
    Singh, amicus curie appearing for accus~d-respm{dent Manmohan Das @
    Manu Bangali has drawn our attention to some of the contradietions, we are
    of the opinion, as recorded by the High Court that these were minor in nature
    and cannot demolish the case of the prosecution.
D
           Radhamani Panda - PWl wife of the deceased was the informant. She
     had· supported completely the prosecution case. According to her the
     occurrence took place on 17th July, 1982 at about 10.00 p.m when the hotel
     was closed and her deceased husband was taking account from th~ employee.
E    Two accused persons namely Radha and Babuli asked for meal by shouting
     and her deceased husband replied that only rice would be available. At the
     request of the above accused persons the door of the hotel was opened and
     four accused persons entered inside and two of them caught hold the beard
     of her deceased husband and thereafter they broke chairs, tables and pulied
    down the electric wires. It had been mentio.ned that at that time there was no
F   supply of electricity and lamps were burning. PWI requested the accused
    persons to cool down and took her husband to the adjacent room. She came
    out and asked the hotel cook namely Bhaskar Panda ( P.W.4) to serve meals,
    while he was doing so in China plates, two other accused persons entered
    and all the accused persons crashed the plates. At the same time she heard
G   her husband shouting that he was being killed and, therefore, she rushed
    inside the room and saw a knife injury on the left side of the belly of her
    husband. She (PW- I) saw accused Kishan was holding the beard of her
    husband and accused Dillip Chand was dragging. She had further stated that
    the assailants had found their way inside through another door. She had made
    a specific statement that while she was going to intervene accused - respondent
H   Manmohan · Das @ Manu Bangali pushed her back and she fell down.
            STATE OFORISSA v. A.D. AGRAWAL [S.N. PHUKAN,J.]                   447
    According to her accused- Arjun Das Agarwal was instigating to beat her           A
    husband. She along with others rescued her husband and brought him inside
    the hotel and all the accused persons dispersed. She took her husband in a
    truck along with others to Narla hospital and on way she dropped Baikunth
    Panda - PW3 to inform the police. On the advice of the local doctor after
    preliminary treatment deceased was removed to Bhawanipatna hospital in the        B
    same truck where he was declared dead. While at Narla hospital a Police
    Officer went there before whom this witness narrated the incident which was
    treated as the FIR. She made categorical statement that she was not mentally
    fit at that time due to the condition of her husband.

           PW2 - Kailash Chandra Panda had a betel nut shop by the side of the        C
    hotel of the deceased; He had stated that he started running a tea stall on
    the verandah of the hotel of the deceased and gave the betel nut shop to his
    brother Baikunth Panda - PW3. He had supported the evidence of PWI in all
.   the above points. He categorically stated that as there was no electric supply,
    a petromax light was burning in the hotel of the deceased and lamps at his
    tea stall. He went inside the hotel and saw accused Dillip Chand gave a knife     D
    blow on the left side of belly of the deceased. According to him accused
    Kishan Lal Kamani caught hold the beard of the deceased and accused
    respondent Manmohan Das @ Manu Bangali and Prafulla caught hold of tuft
    of beard of the deceased. He supported the evidence of PW! inasmuch as
    according to this witness when PWI came to the room accused respondent            E
    Manmohan Das @ Manu Bangali pushed her back, thereafter the assailants
    dragged the deceased to the veraridah where 3-4 more blows by knife were
    given by accused Dillip Chand . Regarding accused respondent Arjun
    Agarwala he had stated that this accused came out from the house and
    instigated the accused persons to kill the deceased. He along with PWI and
    others rescued the deceased and carried him back.                                 F

          Baikuntha Panda - PW3 brother of PW2 had deposed that at that time
    he was at the betel nut shop in front of hotel of the deceased. This witness
    identified accused respondent Manmohan Das @ Manu Bangali and further
    stated that he knew Dillip Chand, Arjuna Das Agarwala, Prafulla and Kishan
    Lal Kamini. This witness did not see the entire incident as he went to attend
                                                                                      a·
    the call of nature on the back side of the hotel . When he heard the cries of
    the deceased he went inside the room .Though this witness had not specifically
    stated the part played by accused-respondent Manmohan Das @ Manu
    Bangali but he categorically stated the presence of this accused-respondent
    at the place of occurrence. Regarding accused-respondent Arjuna Das               H
    448                      SUPREME COURT REPORTS (1999) SUPP. l S.C.R.

A Agarwala this witness had also stated that the accused directed the others
    'to finish deceased as soon as possible'. He also along with others accompanied
    PWl in the truck.
                                                                                          .
                                                                                          r




           Bhaskar Panda - P.W. 4 was working as cook in the hotel of the
B   deceased and he had su.pported fully the evidence of other witnesses. It is
    true that he had not stated the part played by accused-respondent Manmohan
    @ Manu Bangali but regarding accused-respondent Arjuna Das Agarwala he
    had stated that this accused asked others ;to finish him (deceased) soon'.
    From the evidences of the above witnesses the prosecution has been able to
    prove that accused-'respondent Manmohan @ Manu Bangali was present at .
C   the place of occurrence anq he took active part by holding the beard of the
    deceased and also resisting PWl wife of the deceased to go to rescue her
    husband. Regarding accused-respondent Arjuna Das Agarwala only evidence
    is that after coming out from his house he instigated the accused persons to
    kill the deceased but there is no evidence on record to show that as a result
    of instigation more blows were given by accu~ed Dillip Chand or any other
D   action was taken by any other accused persons.

          Regard~ng acquittal of accused-respondent Manmohan Das @ Maim



E
    Bangali the High Court had not recorded any acceptable reason. Regarding
    accused-respondent Arjun Das Agarwal the High Court specifically recorded
    that there was no evidence that this accused entered into the place of
                                                                                      -
    occurrence. The High Court noted that the allegation was that he was standing
    outside and incited other accused persons to finish the deceased. Though,
    according to the prosecution in pursuance of the aforesaid act the deceased
    was assaulted by Jathi but it was not corroborated by the medical evidence,
    therefore, the High Court held that conviction of accused-respondent Arjun
F   Das Agarwal under Section 302/149 IPC is unsustainable.

          Though, Sessions Judge convicted Dillip Chand under Section 302 IPC
    and accused Kishanlal Kamini, Manmohan Das @ Manu Bangali, Prafull
    Kumar Pradhan and Arjun Das Agrawala under Section 302/149 IPC the
G   division bench of the High Court convicted Dallip Chand under Section 302/
    34 IPC and appeals of Prafulla Kumar Pardhan, Kishanlal Kamini, Radheshyam
    Agarwal, Devi Prasad Misra, Babu Ii @ Sudhansu Sekhar Das and .Uttam
    Kumar Behera were dismissed.                                                      '
                                            ....
         As stated earlier the trial court framed charges against accused persons
H   under Section 302/34 IPC and under Section 302/149 IPC. A question may


                                                   '
         STA TE OF ORIS SA v. A.O. AGRA WAL [S.N. PHUKAN, J.]             449
arise as to whether if an accused is charged under Section 3021149 IPC can       A
he be convicted under section 302/34 IPC.

      This Court in Mahabir Gope v. State of Bihar, [1963) 3 SCR 331
considered the question of conviction under Section 302/34 IPC and 302/149
IPC. In that case appellant and 11 other persons were charged under Sections
147 and 302/34 IPC. According to the prosecution the appellant and other         B
accused persons formed themselves into a unlawful assembly at Bhagalpur
Special Central Jail and in prosecution of the common object of said assembly,
the Chief Head Warder and the night Watchmen, were assaulted. They were
also charged under Section 302/34 IPC for assaulting the Chief Head Warder
in furtherance of the common object with a view to cause his death. While        C
upholding the conviction under Section 302/34 IPC this Court held that the
position would not be any different even if the appellant had been convicted
under Section 302/149 IPC as Section 149 IPC provides that if an offence is
committed by any member of unlawful assembly in prosecution of the common
object of that assembly, or such as the members of that assembly knew to
be likely to be committed in prosecution of that object, every person who, at    D
the time of committing of that offence, is a member of the same assembly, is
guilty of that offence.

      In Jagir Singh v. State of Punjab, [1967] 3 SCR 256 this Court also
considered the same question. This Court referred to an earlier decision in      E
Bharwad Mepa Dana and another v. State of Bombay, [ 1960) 2 SCR 172 in
which 14 persons were charged with offences under Section 302 read with
Sections 149 and 34 !PC. Out of 14 accused persons 7 were acquitted. On
appeal the High Court acquitted one of the five convicted persons. This Court
upheld the conviction and held that there was no difficulty in the application
of Section 34 IPC as the number of the convicted persons was four and there      F
was a clear finding that they shared the common intention with other accused
persons whose identity was not established. The above ratio laid down in
Bharwad Mepa Dana and another (Supra) was approved in this case namely
Jagir Singh (Supra).

     The trial court convicted accused Dillip Kumar Chand under Section 302
                                                                                 G
IPC and accused Kishanlal Kamini, Manmohan Das @ Manu Bengali, Prafulla
Kumar Pradhan and Arjun Das Agrawala under Section 302/149 IPC. The High
Court convicted accused Dillip Kumar Chand under Section 302/34 IPC and
a\\owed the appeal of accused persons Manmohan Das @ Manu Bengali anC.
Arjun Das Agrawala. In view of the ratio laid down by this court in Mahabir      H
    450                      SUPREME COURT REPORTS [1999] SUPP. I S.C.R.

A Gope (Supra) and Jagir Singh (Supra), this Court in this appeal has to consider
    whether accused Manmohan Das @ Manu Bengali and Arjun Das Agrawala
    can be convicted under Section 302/34 IPC.

           It is a settled position of law that Section 34 IPC does not create a
    distinct offence and it is the participation of the accused that the intention
B   of committing crime is established and Section 34 IPC is attracted. To rope
    in a person with the aid of Section 34 IPC, prosecution has to prove that the
    criminal act was done by actual participation of more than one person and
    that the said act was done in furtherance of common intention of all engaged
    at a prior concert.
c         Coming to the facts of this present case we find from the evidence on
    record as' extracted above that accused Manmohan Das @ Manu. Bangali
    went to the house of the deceased along with other accused persons where
    accused Dallip Chand gave knife blows to the deceased. We also find that
    the accused respondent Manmohan Das also prevented Radhamani Panda-
D   PW l wife of the deceased to rescue her husband as she was pushed by
    accused-respondent Manmohan Das and she fell down. From the evidence of
    Kailash Chandra Panda-PW2 we find that the accused -respondent Manmohan
    Das @ Manu Bangali caught hold of tuft of beard of the deceased.

           The above evidence on record is sufficient for us to come to the finding   ...
E   that in the criminal act namely giving fatal blows to the deceased accused-
    respondent Manmohan Das @ Manu Bangali actively participated in the said
    criminal act in furtherance of the common object namely to cause death of the
    deceased. The accused - respondent Manmohan Das @ Manu Bangali not
    only went with others to the place of occurrence but he also took active part
F   while accused Dallip Chand gave the blows to the deceased.

          For the above reasons we are of opinion that the High Court erred in
    allowing the appeal of accused Manmohan Das @ Manu Bangali. We, therefore,
    convict accused Manmohan Das @ Manu Bangali under Section 302/34 IPC.

G         Regarding accused - respondent Arjuna Das Agarwal we find from the
    evidence on record that this accused neither went inside the house of the
    deceased nor took any part in the commission of the murder. He only instigated
    by shouting at the other accused persons. There is nothing in evidence to
    show that due to his instigation more blows were given by the accused
    persons. Therefore, no inference can be drawn that this accused-respondent
H   had common intention of causing death of the deceased or that he actually
         STATE OF ORISSA v. A.O. AGRAWAL [S.N. PHUKAN, J.]                451

participated in the criminal act. Therefore, High Court rightly acquitted this   A
accused.

      For the reasons stated above the appeal filed by the State is partly
allowed. The appeal against the order of acquittal of Arjun Das Agarwal is
dismissed and appeal against the order of acquittal of Manmohan Das @
Manu Bangali is allowed and the said order is set aside. He is convicted under   B
Section 302/34 IPC and sentenced to undergo rigorous imprisonment for life.
He shall be taken in custody forthwith to undergo the remaining part of the
sentence.

VM                                                    Appeal partly allowed.     C