L.MOHAPATRA, J & B.K.PATEL, J. CRA. NO. 223 OF 1998 (Decided on 04.11.2011) RANGADHAR BEHERA & ORS. ……. Appellants. .Vrs. STATE OF ORISSA ……..Respondent. PENAL CODE, 1860 (ACT NO. 45 OF 1860 ) – S.34. For Appellant - M/s. Arun Kumar Acharya. For Respondent - Addl. Standing Counsel. L.MOHAPATRA, J. All the four appellants have been convicted for committing murder of one Ghasinath Behera on 29.7.1996 forenoon and each one of them has been sentenced to imprisonment for life by the learned Sessions Judge, Keonjhar in S.T Case No.11 of 1997. In this appeal they challenge the said order of conviction and sentence recorded by the learned Session Judge. 2. From the allegations made in the F.I.R and depositions of witnesses examined in course of trial, it appears that all the appellants are agnates of deceased Ghasinath Behera and they had a dispute in respect of a piece of paddy field. On 29.7.1996 forenoon the deceased planted paddy in the disputed land in spite of protest raised by the appellants. In the afternoon, the deceased had gone to Janghira Weekly Market and returned home at about 3.00 P.M with Sadasiba Amanta in a cycle. The deceased was the pillion rider. As soon as they reached the crossing of the road near their village locally known as “Manipur Chhak”, the appellants came in front of the shop of one Jugal Sahu and stopped the cycle. Appellant-Sanatan @ Sunakar Behera dragged the deceased to the side of the road and stabbed him by means of a knife on his chest. Appellant-Rangadhar Behera assaulted the deceased with a lathi and appellant-Sarat Chandra Behera dealt blows on the head of the deceased by means of a ‘Bhujali’. Other appellant-Damodar Behra dealt blows on the neck of the deceased by means of a ‘Bala’. Accused-Ramachandra Sahoo also assaulted the deceased. At that point of time the son and daughter-in-law of the deceased came to the spot and gave water to the deceased. Appellants-Rangadhar and Damodar thinking that the deceased might be living again came back to the spot and started assaulting him with lathi and left the place. When the deceased was being taken to Hospital he succumbed to the injuries on the way. The son of the deceased, P.W.1, lodged the F.I.R., on the basis of which investigation was taken up and on completion of investigation charge sheet was submitted against all the appellants and accused-Ramachandra Sahoo for commission of offence under Sections 147 / 148 / 302 / 114 / 149 of I.P.C. 3. The prosecution in order to establish the charges examined eight witnesses. P.W.1 is the son of the deceased and P.W.2 is a witness to the occurrence. P.W.3 is a post occurrence witness and is also a witness to the seizure of incriminating articles in respect of seizure lists Exts.3 and 4. P.W.4 is a witness to the seizure in respect of Exts.5, 6 and 7. P.W.5 is the Doctor, who made the blood grouping of the appellants and submitted his report in Ext.9 and P.W.6, the Doctor, who conducted the postmortem examination. Both P.Ws.7 and 8 are the Investigating Officers. The plea of defence was complete denial of the prosecution allegation and in course of trial it was contended by the appellants that the deceased might have sustained fatal injuries due to some other reason and they have been falsely implicated because of a land dispute. In support of their plea they also examined one witness namely Abhimanyu Penthei. 4. Learned Sessions Judge held that P.W.1 is not an eyewitness to the entire occurrence and had only seen the second part of the occurrence. The evidence of P.W.2 was accepted in its entirety by the learned Sessions Judge and on the basis of evidence of these two eyewitnesses coupled with medical evidence the learned Sessions Judge found the four appellants guilty of charges under Sections 302 / 34 of I.P.C. 5. Sri Acharya, learned counsel appearing for the appellants challenged the impugned judgment on the ground that there is no evidence whatsoever to support the charge under Section 34 of I.P.C and in absence of any evidence all the four appellants have been convicted for commission of offence under Section 302 of I.P.C with aid of Section 34 of the said Code. According to Sri Acharya, learned counsel for the appellants there is no evidence to show that there was any prior meeting of mind to assault the deceased or that at the spur of the moment the appellants had decided to cause death of the deceased. In absence of any material to support the charge under Section 34 of I.P.C., the individual conduct of each of the appellants should have been examined by the learned Sessions Judge. It was further contended by learned counsel appearing for the appellants that if individual conduct of each of the appellants is considered, none of them can be convicted for commission of offence under Section 302 of I.P.C. 6. Learned counsel for the State submitted that there need not be any evidence with regard to prior meeting of mind and common intention can arise at the spur of the moment. The manner in which the deceased was assaulted by the four appellants clearly show that they had the common intention of causing death of the deceased and therefore, even though they were charged for commission of offences under Sections 302 / 149 of I.P.C they were rightly convicted for commission of offences under Sections 302 / 34 of I.P.C. 7. On careful examination of the evidence of the witnesses examined in course of trial, we find that P.W.2 is an independent witness, who had seen the entire occurrence and P.W.1 who is the son of the deceased and is also the informant claimed to have seen the entire occurrence. P.W.1 in his evidence stated that on 29.7.1996 he and his deceased father planted paddy in the disputed land where after the deceased had gone to Janghira Weekly Market. When he was returning at about 3.00 P.M, appellants- Sanatan, Rangadhar and Sarat were standing in front of the shop of Jugal Sahu. The deceased was coming with one Sadasib Amanta. Appellant-Sanatan caught hold of the cycle and thereafter he caught hold the hair of the deceased and dealt blow on his face. He pulled the deceased and stabbed on his ribs with a knife. Appellant-Rangadhar 2 assaulted the deceased with a lathi and caused fracture of his hands and legs. Appellant-Sarat dealt a ‘Bhujali’ blow on the head of the deceased and appellant- Damodar dealt a blow by means of a ‘Bala’ on the neck of the deceased. All the appellants thereafter left for their respective houses. He and his wife went to attend their injured father and administered water. Again appellants-Rangadhar and Damodar came back to the spot and started assaulting the deceased by means of lathi. Thereafter the deceased was taken to Hospital but on the way he succumbed to the injuries. In cross- examination P.W.1 clearly admitted to have seen the assault on his father on the second occasion. Therefore, the learned Sessions Judge did not believe P.W.1 so far as the first part of the occurrence is concerned and accepted his evidence in respect of the second part of the occurrence. P.W.2 in his deposition stated that the deceased and one Sadasiba Amanta were coming on a cycle and he was following them in another cycle from Janghira Weekly Market on the date of occurrence. When the deceased reached at ‘Manipur Chhak’ appellant-Sanatan dragged him from the cycle and dealt a blow on his face. He thereafter stabbed on the left side chest of the deceased by means of a spring knife and dragged him further up to the road. Thereafter appellant-Rangadhar assaulted the deceased with a lathi and appellant-Sarat dealt three blows with a ‘Bhujali’ on the head of the deceased. Appellant-Damodar also dealt blows with one ‘Bala’. Though he requested the appellants not to assault the deceased they did not listen to him. The deceased was lying on the spot in dying condition. At that point of time P.W.1 and his wife brought water from the house of one Abhimanyu Penthei and gave to the deceased. The deceased thereafter died when he was being shifted to Hospital. This witness has not been cross-examined on material particulars. Therefore, his entire evidence has been rightly accepted by the learned Sessions Judge. P.W.3 is a witness to the seizure under Exts.3 and 4 and P.W.4 is a witness to the seizure under Exts.5, 6 and 7. P.W.5 is the Doctor who examined the blood group of appellants-Damodar and Subal and P.W.6 is the Doctor who conducted the postmortem examination. From the evidence of P.W.6, it appears that the deceased had sustained as many as eight incised wounds all over the body including right side of the neck, back of the neck, abdomen, occipital region, chest and left partinum. P.W.6 was of the opinion that the death was due to injuries to the vital organs like brain and could be caused by sharp cutting weapons. All the injuries were ante mortem in nature and the weapons like axe, sword and bamboo lathi produced by the Investigating Officer could cause such type of injuries. P.Ws.7 and 8 were the two Investigating Officers. 8. The sole argument advanced by learned counsel for the appellants was that there is no material to support the charge under Section 34 of I.P.C and therefore, individual conduct of each of the appellant is required to be seen to find out as to what offence each one has committed. It is a fact that none of the witnesses examined on behalf of prosecution has stated to have seen the four appellants taking a decision to cause death of the deceased. It is not necessary for the prosecution to prove in every case that there was prior meeting of mind in order to establish the charge under Section 34 of I.P.C. The common intention can be gathered from the conduct of the appellants at the time of occurrence. This is a case where the common intention of all the four appellants is clear from the evidence of P.Ws.1 and 2. From the evidence of P.Ws.1 and 2, it is proved that in the forenoon of the date of occurrence the deceased 3 had planted paddy over a piece of land in respect of which there was dispute between the deceased and the appellants. At the time of planting paddy the appellants had also protested. On the very same day, at about 3.00 P.M when the deceased was coming back home from Janghira Weekly Market along with one Sadasib Amanta, all the appellants, who had gathered at ‘Manipur Chhak’ with deadly weapons dragged the deceased and assaulted him by means of different weapons. As is evident from the evidence of P.W.2, appellant-Sanatan dragged the deceased from the cycle and gave a blow on his face and thereafter stabbed on the left side of his chest by means of a knife. Thereafter, appellant-Rangadhar assaulted by means of lathi. Appellant-Sarat dealt blows with a ‘Bhujali’ and appellant-Damodar dealt blows with a ‘Bala’. The evidence of P.W.2 stands corroborated by the evidence of P.W.6, the Doctor, who conducted postmortem examination and P.W.6 in his evidence has specifically stated that the injuries sustained by the deceased could be caused by weapons of offence like axe, sword and bamboo lathi seized in course of investigation. From the conduct of the appellants in being armed with deadly weapons waiting for the deceased near ‘Manipur Chhak’ and assaulting the deceased one after another immediately after the deceased reached the spot clearly show that they shared the common intention of not only assaulting the deceased but also causing his death. If evidence of P.W.1 in respect of the second phase of the occurrence is accepted, that itself further shows that the appellants had the common intention of causing death of the deceased and therefore, even after assaulting the deceased in the first phase, thinking that the deceased might be living, two of the appellants again came back to the spot and assaulted the deceased by means of bamboo lathi. 9. We are therefore, unable to accept the contention of learned counsel for the appellants that the ingredients of Section 34 of I.P.C are lacking in this case. In view of cogent evidence adduced by the prosecution through the mouths of P.Ws.1 and 2 and the evidence of P.W.6, the Doctor, who conducted postmortem examination no doubt is left in the mind of the Court to hold that the appellants had the common intention of assaulting and causing death of the deceased and on the date of occurrence, each one of them assaulted the deceased by means of different weapons of offence and caused his death. 10. We therefore, find no merit in the appeal and accordingly dismiss the same. Since the appellants are on bail, the trial court is directed to take immediate steps for apprehending them to serve the rest of the sentence. Appeal dismissed. 4