Before coming to a conclusion and holding that the appellants have vicarious liability, the court must satisfy itself whom to make liable: Orissa High Court

HIGH COURT OF ORISSA: CUTTACK. CRA No.902 From the judgment of conviction and order of sentence dated 05.04.2002 passed by Sri G.R. Dubey learned Adhoc Additional District and Sessions Judge Sundargarh in Sessions Trial No.55 100. Kaleswar Majhi and Others State of Orissa Versus For Appellants Mr. S.K. Mund For Respondent Sk. Zafrulla Additional Standing Counsel. P R E S E N T : SHRI JUSTICE S. K. MISHRA MISS JUSTICE SAVITRI RATHO S. K. MISHRA J. The appellants assail their conviction under Section 302 449 and 342 read with Section 34 of the Indian Penal Code 1860 recorded by the learned Adhoc Additional District and Sessions Judge Sundargarh in Sessions Trial No.55 15 of 2000 wherein they have been sentenced to undergo imprisonment for life under Section 302 34 of the Penal Code and also to undergo imprisonment for life under Section 449 34 of the Penal Code. But no separate sentence was passed for their conviction under Section 342 34 of the Penal Code. It was further directed vide the aforesaid impugned judgment that the above said two sentences were to run concurrently. The case of the prosecution in short is that on 17.03.1999 at about 8.00 A.M. at village Thutipipal while informant Rahasbihari Naik and his son deceased Bholeswar Naik were in their house five accused persons namely Khaleswar Majhi Paleswar Majhi Kailash Majhi Sachindra Majhi and Munu Majhi barged into it and forcibly dragged Bhuleswar out of the house. They took him to a place in front of the house of the accused Dasarath Majhi tied his hands and feet with ropes and then fastened him to a Bakamba tree. In spite of the protest of Rahasbihari the above said five accused persons started assaulting Bhuleswar with bamboo lathies. On getting information about the assault the brother mother and uncle of Bhuleswar who were then working in their field nearby came to the spot and witnessed the occurrence. Accused Munu Majhi went to his house which is very close to the spot brought out a budia and with it assaulted Bhuleswar on his head. As a result of the assault Bhuleswar died at the spot. The informant Rahasbihari Naik went to Police Station Kinjirkela and submitted a written report on 18.03.1999 at about 12.30 P.M. It was treated as F.I.R. and a case under Section 302 34 of the Penal Code was registered against the above said five accused persons. The Investigation Officer took necessary steps and upon completion of investigation submitted charge sheet against the appellants and other three accused persons namely Munu Majhi Dasarath Majhi and Sankar Majhi under Sections 450 341 302 read with Section 34 of the Penal Code. The learned Adhoc Additional District and Sessions Judge Sundargarh on 04.06.2001 framed charges under Section 449 342 302 34 of the Penal Code against the appellants and other above named accused persons. During the course of trial the accused Munu Majhi died and the case abated against him. The defence took the plea of complete denial. In order to prove its case the prosecution examined 16 witnesses and the defence examined nine defence witnesses. Informant Rahasbihari Naik is P.W.1 P.W.2 is Rajendra Naik Ajit Kumar Naik P.W.3 Siso Badaik P.W.4 Nilamani Badaik P.W.5 Udayanath Bhitria P.W.8 and Sushila Naik P.W.15 are eye witnesses to the occurrence. Udhab Bhitria P.W.6 Jaitram Naik P.W.7 Muralidhar Naik P.W.9 Constable Jatra Charan Patra P.W.10 Constable Julen Kiro P.W.11 and Constable Balunkeswar Suri P.W.14 are the witnesses to different seizures. Dr. Sushila Rita Prava Kujur P.W.12 conducted post mortem examination over the dead body of the deceased Bhuleswar Naik. Dr. Pradeep Kumar Prasad P.W.13 did the blood grouping of the accused persons. Lokanath Gidhi the Investigating Officer is P.W.16. into consideration the evidence tendered by prosecution and the materials available on record the learned Adhoc Additional District and Sessions Judge Sundargarh came to the conclusion that the prosecution has proved its case beyond all reasonable doubt against the present appellants and therefore proceeded to convict them under the Penal Code as stated above. Mr. S.K. Mund learned counsel for the appellants does not dispute the homicidal nature of death of the deceased. He also does not dispute the guilt of accused Munu Majhi who committed murder of the deceased. However Mr. Mund learned counsel for the appellants very emphatically submits that the conviction of the appellants under Section 302 34 of the Penal Code is not sustainable in this case. Sk. Zafrulla learned Additional Standing Counsel for the State on the other hand submits that conviction of the appellants under Section 302 34 of the Penal Code is proper and requires no interference. It may be stated here that Mr. S.K. Mund learned counsel for the appellants has not assailed the conviction of the appellants under Sections 342 449 34 of the Penal Code. Having heard the learned counsel for the parties and on examination of the evidence on record it is seen that the informant P.W.1 has stated that on the date of occurrence at about 8.00 A.M he and his son deceased Bhuleswar) were sitting in their house. At that time the appellants along with late Munu Majhientered inside their house all of a sudden and dragged his son Bhuleswar to outside. The deceased was tied with a Bakamba tree and was assaulted by means of lathies by all the appellants as well as the late accused Munu Majhi. It is further alleged that each of them was holding a bamboo thenga. On seeing this P.W.1 raised hullah and P.W.4 Siso Badaik and P.W.8 Udayanath Bhitria came to the spot. The evidence on record further discloses that P.W.5 Nilamani Badaik @ Ainthu Badaik went to inform about the assault to the elder brother of the deceased i.e. P.W.3 Ajit Kumar Naik who was at that time present in his farm at a distance of about half kilometer from the village and as per the evidence of P.W.5 at a distance of about one kilometer from the spot. There he informed P.Ws.2 5 and 15. All of them came to the spot. After P.W.2 reached the spot he found the deceased standing being tied with a Bakamba tree. He found the appellant Kaleswar Majhi standing near the deceased holding a thenga. The other appellants were present at a distance of about 5 to 10 cubits away from the spot. The deceased asked for water. P.W.2 who is the paternal uncle of the deceased told his daughter to bring some water. While he was administering water to the deceased the late co accused Munu Majhi went to his house brought a budia and dealt five strokes by that budia on the head of the deceased as a result of which the deceased died at the spot. Upon hearing the learned counsel for the appellants as well as the learned Additional Standing Counsel for the State and after screening the evidence available on record it is apparent that there are two distinct occurrences. The first part of the occurrence is when the appellants as well as late accused Munu Majhi and two others went to the house of the deceased dragged him outside his house and tied him to the Bakamba tree. Then they assaulted the deceased by means of lathis. Then there was a time gap. At that time the relations of the deceased arrived. When they were tendering water to the deceased accused Munu Majhi went to his house and brought a budia and assaulted the deceased mercilessly on his head which caused his death. On this score learned counsel for the appellants submits that for the second assault by the late accused Munu Majhi the appellants cannot be made vicariously liable under Section 34 of the Penal Code. We are of the view that it is not the case of the prosecution that when the occurrence started i.e. trespassing to the house of the deceased and forcibly dragging him out from his house the late accused Munu Majhi and the present appellants had the common intention of committing murder or that Munu Majhi was armed with the budia. It is borne out from the record that there was some dispute between late accused Munu Majhi and the deceased because of an allegation that the deceased had kidnapped the daughter of late accused Munu Majhi. To settle the dispute they had brought out the deceased from his house. There is no material on record to show that the accused persons had the common intention of committing murder of the the village road. Learned Additional Standing Counsel for the State however submits that the intention can arise at the spot after bringing the deceased to In our considered opinion the conduct or other evidence available on this score must be such so as not to leave any room for doubt regarding the developed common intention. Before coming to a conclusion and holding that the appellants have vicarious liability the court must satisfy itself as to the prior meeting of minds of the principal culprit and his companions who are sought to be constructively made liable in respect of every act committed by the former. Whether there was common intention or not depends upon fact and circumstances of each case. The intention of the principal offender and his companions to deal with any person must be apparent from the conduct of the person accompanying the principal culprit. There must be some other clear and cogent incriminating piece of evidence. When such materials are absent the companions cannot be justifiably held guilty of every offence committed by the principal offender. The evidence regarding development of common intention to commit an offence graver than the one originally designed during execution of the original plan should be clear and cogent. In this case we have seen that there is no clear and cogent material on record to show that the appellants who brought the deceased from his house and tied him to a tree and then assaulted him by means of lathis did not have any intention of committing his murder. It is the very case of the prosecution that when the deceased was tied to the tree and was being tendered water by one of his relations the late accused Munu Majhi assaulted on the head of the deceased by means of an axe which he brought from his house situated nearby. He was not carrying the axewhen he along with the appellants had trespassed into the house of the deceased. Moreover P.W.12 the doctor who conducted post mortem examination has stated that the deceased has sustained injuries. Injury nos.(ii)(a) toare incised wounds while injury nos.(ii)(h) toare abrasions and injury no.(ii)(n) is a ligature mark. P.W.12 the doctor further stated that injury nos.8 to 13 could have been caused by lathis which had been sent to him. Therefore an offence under Section 323 34 of the Penal Code is made out against the appellants. So having considered the materials available on record and the submissions made by the learned counsel for the parties we are of the opinion that the conviction of the appellants under Section 302 34 of the Penal Code recorded by the learned Adhoc Additional District and Sessions Judge Sundargarh is erroneous and is liable to be set aside. We are of the view that the offence under Section 302 34 of the Penal Code is not made out in this case. However the conviction under Section 342 34 of the Penal Code is proper and requires no interference. The conviction under Section 449 34 of the Penal Code is also not proper as the appellants have not trespassed into the house to commit the murder of the deceased. Hence their conviction under Sections 302 449 34 of the Penal Code is erroneous. However they are guilty of the offence of 323 342 448 34 of the Penal In the result the appeal is allowed in part. The conviction of the appellants under Section 302 449 34 of the Penal Code recorded by the learned Adhoc Additional District and Sessions Judge Sundargarh in the aforesaid case is set aside and the appellants are acquitted of the said The offence under Section 449 of the Penal Code is not made out as the prosecution has failed to prove that the appellants have committed house trespass in order to commit any offence punishable with death. Since the appellants are acquitted of the charge under Section 302 34 of the Penal Code the offence under Section 449 34 of the Penal Code is not made out. Rather the offence under Section 448 34 of the Penal Code is made out against the appellant. Therefore the offence under Section 449 34 is converted to an offence under Section 448 34 of the Penal Code as the appellants found guilty of committing house trespass. Section 448 of the Penal Code prescribes punishment of one year imprisonment or with fine. In this case since the occurrence took place in March 1999 and in the meantime 21 years have already been elapsed we are of the opinion that the period already undergone by the appellants shall sub serve the interest of justice. Accordingly the appellants are sentenced to undergo imprisonment already undergone by them for the offence under Section 323 448 34 of the I.P.C. No separate sentence has been passed under Section 342 34 of the I.P.C. It is apparent from the Record that the present appellants have been granted bail. Hence they be set at liberty forthwith by cancelling the bail bond executed by them. The T.C.R. be returned back forthwith. Urgent certified copy of this order be granted on proper S. K. Mishra) Savitri Ratho) Savitri Ratho J. I agree. Orissa High Court Cuttack Dated the 18th February 2021 B. Jhankar 

Summary: Before concluding that the appellants have vicarious culpability, the court shall be satisfied that the main perpetrator and his associates are constructively responsible for any act done by the latter previous to their meeting. The court shall be satisfied with the preceding hearing. The judgment was passed by The High Court of Orissa in the case of Kaleswar Majhi and Others Vs the State of Odisha [CRA No.96 of 2002] by Division Bench consisting of Hon’ble Shri Justice. S.K. Panigrahi. The appellants assail their conviction under Section 302, 449 and 342 read with Section 34 of the Indian Penal Code, by the learned Sessions Judge, wherein they have been sentenced to undergo imprisonment for life under Section 302/34 of the Penal Code and also to undergo imprisonment for life under Section 449/34 of the Penal Code. But, no separate sentence was passed for their conviction under Section 342/34 of the Penal Code. It was further directed vide the aforesaid impugned judgment that the above said two sentences were to run concurrently. Learned and Sessions Judge, concluded that the prosecution has proved its case beyond all reasonable doubt against the present appellants and, therefore, proceeded to convict them under the Penal Code. Learned Counsel for the appellants does not dispute the homicidal nature of the death of the deceased. He also does not dispute the guilt of accused Munu Majhi who murdered the deceased. However, counsel for the appellants very emphatically submits that the conviction of the appellants under Section 302/34 of the Penal Code is not sustainable in this case. Learned Counsel for the respondent, on the other hand, submits that conviction of the appellants under Section 302/ 34 of the Penal Code is proper and requires no interference. While clearing the contention to punishment the court observed that “the offence under Section 449 of the Penal Code is not made out, as the prosecution has failed to prove that the appellants have committed house-trespass to commit any offence punishable with death. Since the appellants are acquitted of the charge under Section 302/34 of the Penal Code, the offence under Section 449/34 of the Penal Code is not made out. Rather, the offence under Section 448/34 of the Penal Code is made out against the appellant. Therefore, the offence under Section 449/34 is converted to an offence under Section 448/34 of the Penal Code as the appellants found guilty of committing house-trespass.”