Orissa High Court
Bhagya @ Bhagirathi Bisoi vs State Of Odisha on 1 July, 2025
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
Criminal Appeal No.321 of 1996
An appeal under section 374(2) of Cr.P.C. from the judgment
and order dated 22.11.1996 passed by the 1st Additional
Sessions Judge, Berhampur in S.C. No.44 of 1993/S.C.
No.273/93 G.D.C.
-------------------------
1. Bhagya @ Bhagirathi Bisoi
2. Babu @ Babula Naik
3. Basant Naik @ Bapana
4. Aruna Naik
5. Bidu @ Bidyadhar Naik
6. Dillip Naik
7. Lambodar Naik
8. Anjan @ Ranjan Naik
9. Promod Naik
10. Pruthibi Naik
11. Bijuli Naik
12. Bishnu Bisoi @ Naik
13. Bira Naik ....... Appellants
-Versus-
State of Odisha ....... Respondent
Signature Not Verified
Digitally Signed
For Appellant: - Mr. Saroj Kumar Routray
Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Amicus Curiae
Location: HIGH COURT OF
ORISSA, CUTTACK
Date: 09-Jul-2025 10:28:34
For Respondent: - Mr. Sarat Chandra Pradhan
Addl. Standing Counsel
-------------------------
Criminal Appeal No.321 of 1996 Page 1 of 46
P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
AND
THE HONOURABLE MR. JUSTICE CHITTARANJAN DASH
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Date of Hearing and Judgment: 01.07.2025
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By the Bench: This Criminal Appeal was filed by thirteen appellants
i.e. Bhagya @ Bhagirathi Bisoi (A-1), Babu @ Babula Naik (A-2),
Basant Naik @ Bapana (A-3), Aruna Naik (A-4), Bidu @
Bidyadhar Naik (A-5), Dillip Naik (A-6), Lambodar Naik (A-7),
Anjan @ Ranjan Naik (A-8), Promod Naik (A-9), Pruthibi Naik (A-
10), Bijuli Naik (A-11), Bishnu Bisoi @ Naik (A-12) and Bira Naik
(A-13), out of which A-4 Aruna Naik, A-5 Bidu @ Bidyadhar Naik,
A-8 Anjan @ Ranjan Naik, A-11 Bijuli Naik and A-13 Bira Naik
are dead and vide order dated 27.08.2024, this appeal has been
directed to be abated in respect of those appellants.
The thirteen appellants who have preferred this
appeal along with six other accused persons faced trial in the
Court of learned 1st Additional Sessions Judge, Berhampur in S.C.
No.44 of 1993/ S.C. No.273/93 G.D.C. for commission of
offences punishable under sections 148/302/149 of the Indian
Penal Code (hereinafter „I.P.C.‟) on the accusation that on
Criminal Appeal No.321 of 1996 Page 2 of 46
05.03.1993 at about 10.00 a.m. at the embankment of Kansari
Sahi Tank of Jagmohan Gram Panchayat, they formed an
unlawful assembly and in prosecution of common object of such
assembly, they committed the offence of rioting being armed
with deadly weapons kati, sword, iron rod, pharsa etc. and
thereby committed murder of Panchu Naik and Igni Naik
(hereinafter „the deceased persons‟).
The learned trial Court vide impugned judgment and
order dated 22.11.1996 acquitted six accused persons. However,
A-1 Bhagya @ Bhagirathi Bisoi, A-2 Babu @ Babula Naik, A-3
Basant Naik @ Bapana, A-4 Aruna Naik and A-5 Bidu @
Bidyadhar Naik were found guilty under sections 148/302/149 of
the I.P.C. and they were sentenced to undergo R.I. for life for
the offence under section 302/149 of the I.P.C., however, no
separate sentence has been awarded for their conviction under
section 148 of the I.P.C. So far as appellant nos.6 to 13 are
concerned, it was held that that they had the knowledge being
members of unlawful assembly that an offence of culpable
homicide was likely to be committed and accordingly, they were
found guilty under sections 304 Part-II/149 of the I.P.C. and
sentenced to undergo R.I. for five years each and to undergo
Criminal Appeal No.321 of 1996 Page 3 of 46
R.I. for one year each for the offence under section 148 of the
I.P.C. and both the sentences were directed to run concurrently.
Prosecution Case:
2. The prosecution case, as per the first information
report (hereinafter „F.I.R.‟)(Ext.11) lodged by Habuli Naik
(P.W.14) on 05.03.1993 before the Inspector in-charge of Aska
police station, in short, is that there was a civil dispute between
the parties for which cases were instituted including a proceeding
under section 107 of Cr.P.C. and on the date of occurrence i.e.
05.03.1993, the deceased Panchu Naik along with his father
deceased Igni Naik had come to the spot which was the
embankment of Kansari Sahi tank of Jagmohan Grampanchayat
to cut some trees and while they were cutting the trees, at about
10 a.m., the accused persons being armed with sharp cutting
weapons like kati, pharsa, axe etc. reached there. Deceased
Panchu Naik was assaulted by A-2 Babu @ BabulaNaik, A-3
Basant Naik @ Bapana and A-6 Dillip Naik by means of sharp
cutting weapons on different parts of his body. The deceased
Igni Naik was also assaulted by A-1 Bhagya @ Bhagirathi Bisoi,
A-12 Bishnu Bisoi and others by sharp cutting weapons. As a
result of such assault, both the deceased sustained injuries and
thereafter, they were shifted to Aska Hospital for treatment and
Criminal Appeal No.321 of 1996 Page 4 of 46
on the way, the deceased Panchu Naik died at Mundamorei Bus
Stand and the deceased Igni Naik was admitted in Aska Hospital
for treatment and then P.W.14 came to Aska police station to
lodge the F.I.R.
On the oral report of P.W.14, Prafulla Chandra Barik
(P.W.28), the Inspector in-charge of Aska police station reduced
it into writing and registered as Aska P.S. Case No.34 dated
05.03.1993 for the offences under sections 148/302/307/149 of
the I.P.C. against 21 accused persons and directed S.I. of police
Sri Lokanath Sahu (P.W.25) to take up investigation of the case.
P.W.25,the I.O. during investigation examined the
informant (P.W.14), visited the Govt. Hospital, Aska where the
deceased Igni Naik was being hospitalized and he issued
requisition to the Medical Officer requesting to record the dying
declaration of the deceased Igni Naik. P.W.25 then visited the
village Mundamorei where he found the dead body of the
deceased Panchu Naik and held inquest over the dead body and
prepared the inquest report vide Ext.7/1. He collected the blood
stained earth, sample earth from the place of occurrence and
seized the same as per seizure list Ext.16. Then he examined
some witnesses, sent the dead body of the deceased Panchu
Naik for post mortem examination to F.M.T. Department,
Criminal Appeal No.321 of 1996 Page 5 of 46
M.K.C.G. Hospital, Berhampur. He arrested some of the accused
persons and examined the A-3 Basant Naik @ Bapana and seized
one sword suspected to have stained with blood from the
possession of the said appellant vide seizure list Ext.12/1. At the
instance of the A-12 Bishnu Bisoi @ Naik, one knife was seized
from his house as per seizure list Ext.13/1. Similarly, at the
instance of A-4 Aruna Naik (dead), one tangia was seized as per
seizure list Ext.14/1. At the instance of A-5 Bidu @ Bidyadhar
Naik (dead), one Parsuram tangia stained with blood was seized
as per seizure list Ext.15/1. The I.O. received telephonic
message about the death of the deceased Igni Naik from the
Medical Officer on 06.03.1993 and he visited Aska Hospital, held
inquest over the dead body and prepared the inquest report vide
Ext.18 and sent the dead body for post-mortem examination.
The I.O. after post mortem examination, received the wearing
apparels of the deceased Panchu Naik and seized it under the
seizure list Ext.6/1. He also seized the wearing apparels of the
deceased Igni Naik under the seizure list Ext.5/1. On
13.03.1993, the I.O. arrested Bibhisan Naik (acquitted by the
trial Court) and forwarded him to the Court. He received
information that the Medical Officer (P.W.1) has recorded the
dying declaration of the deceased Igni Naik.
Criminal Appeal No.321 of 1996 Page 6 of 46
P.W.28 took over charge of investigation from
P.W.25 on 15.03.1993, examined some witnesses, sent the
seized articles to S.F.S.L., Rasulgarh for chemical analysis. On
completion of investigation, he submitted charge sheet on
30.05.1993 against the appellants and other accused persons.
Framing of Charges:
3. After submission of charge sheet, the case was
committed to the Court of Session after complying due
formalities. The learned trial Court framed charges against the
appellants and other accused persons as aforesaid and since the
appellants and other accused persons refuted the charges,
pleaded not guilty and claimed to be tried, the sessions trial
procedure was resorted to prosecute them and establish their
guilt.
Prosecution Witnesses, Exhibits and Material Objects:
4. During the course of trial, in order to prove its case,
the prosecution has examined as many as twenty eight
witnesses.
P.W.1 Dr. Seikh Jebrail was the Medical Officer, Govt.
Hospital, Aska, who treated the deceased Igni Naik in the
hospital and recorded his dying declaration (Ext.1/1) on police
requisition. He noticed seven incised wounds on different parts of
Criminal Appeal No.321 of 1996 Page 7 of 46
body of the deceased and opined that such injuries were possible
by sharp cutting weapon and the impact of all the injuries taken
together was sufficient to cause death.
P.W.2 Bala Raju Das, P.W.3 Radha Naik, P.W.4 Dillip
Kumar Mishra, P.W.5 Somonath Sahu, P.W.6 Damodar Mohanty,
P.W.7 Duryadhan Sahu, P.W.13 Santosh Muni, P.W.16 Bali Naik,
P.W.17 Tara Naik, P.W.19 Niladri Naik, P.W.20 Udayanath Sahu,
P.W.21 Jalandhar Naik, P.W.23 Somanath Naik and P.W.24
Mohan Naik pleaded their ignorance about the case.
P.W.8 Dr. Syamaghan Biswal was the Medical Officer,
Govt. Hospital, Aska who treated the deceased Igni Naik when
he was admitted into the hospital on 05.03.1993 where the
deceased died on 06.03.1993. He prepared the bed head tickets.
P.W.9 T. Bairagi and P.W.10 Prafulla Kumar
Mohapatra were the constables attached to Aska P.S., who were
deputed to village Mundamorei and they brought the dead body
to the hospital for post mortem examination.
P.W.11 Pravakar Nahak was the Havildar attached to
Aska P.S., who was deputed to village Mundamorei to watch the
dead body.
Criminal Appeal No.321 of 1996 Page 8 of 46
P.W.12 G. Trinath Rao was the constable attached to
Aska P.S. who carried the dead body of the deceased Igni Naik
to Purushottampur Hospital for post mortem examination and
also produced the wearing apparels of the deceased before
O.I.C.
P.W.14 Habuli Naik is the informant in the case and
he is an eye witness to the occurrence.
P.W.15 Lokanath Naik found the dead body of the
deceased Panchu Naik on the main road of village Mundamorei
near a tea stall at 4.00 p.m. in a bleeding condition.
P.W.18 Debaki Naikani is the widow of the deceased
Igni Naik and mother of the deceased Panchu Naik and she is an
eye witness to the occurrence.
P.W.22 Kuntala Naikani is the mother-in-law of the
deceased Panchu Naik and she is a post-occurrence witness.
P.W.25 Lokanath Sahu is the Investigating Officer in
the case.
P.W.26 Dr. Asutosh Mohapatra was the Medical
Officer who conducted the post mortem examination over the
dead body of the deceased Igni Naik and proved his report vide
Ext.20.
Criminal Appeal No.321 of 1996 Page 9 of 46
P.W.27 Dr. Nayan Kishore Mohanty was the Asst.
Professor, F.M.T. Department, M.K.C.G. Medical College,
Berhampur who conducted post-mortem examination over the
dead body of the deceased PanchuNaik and proved his report
vide Ext.21.
P.W.28 Prafulla Chandra Barik was the I.I.C. of Aska
P.S. who reduced the oral statement of informant (P.W.14) into
writing on 05.03.1993 and directed P.W.25 to take up
investigation of the case and subsequently he took over
investigation from P.W.25 and on completion of investigation,
submitted charge sheet.
The prosecution exhibited twenty four documents.
Ext.1/1 is the dying declaration, Ext.2/1 is the injury report,
Ext.3 is the bed head ticket, Ext.4/1 is the report of P.W.1,
Ext.7/1 is the inquest report, Exts.9, 9/1 & 9/2 are the bed head
tickets, Ext.10 is the report of P.W.8, Ext.11 is the F.I.R., Ext.16
is the seizure list, Ext.17 is the dead body challan, Ext.18 is the
inquest report, Ext.19 is the dead body challan, Ext.20 is the
post mortem report of deceased Igni Naik, Ext.21 is the post
mortem report of Panchu Naik, Ext.22 is the opinion of P.W.27,
Ext.23 is the forwarding letter and Ext.24 is the chemical
examiner report.
Criminal Appeal No.321 of 1996 Page 10 of 46
The prosecution also proved four material objects.
M.O.I is the pharsa, M.O.II is the sword, M.O.III is the axe and
M.O.IV is the bhujali.
Defence Plea:
5. The defence plea of the appellantswas that on
account of civil dispute, they have been falsely entangled in the
case. The defence has examined two witnesses in its behalf.
Findings of the Trial Court:
6. The learned trial Court after assessing the evidence
on record, came to hold that the prosecution has successfully
established that both the deceased died homicidal death and
mainly relying on the eye witnesses account of P.W.14 and
P.W.18 coupled with the dying declaration (Ext.1/1) recorded by
the Medical Officer (P.W.1), though acquitted six accused
persons, but found the appellant nos.1 to 5guilty under section
302/149 of the I.P.C. holding that the deceased Panchu received
pharsa, sword, kati blows from them which caused bodily injuries
sufficient to cause death in ordinary course of nature.So far as
the deceased Igni is concerned, learned trial Court has excluded
the evidence of the eye witnesses and holding the dying
declaration of deceased Igni made before the doctor (P.W.1) to
be true and reliable, found that A-1 Bhagya @ Bhagirathi Bisoi,
Criminal Appeal No.321 of 1996 Page 11 of 46
A-3 Basant Naik @ Bapana and A-5 Bidu @ Bidyadhar Naik
(dead) to be liable for his murder. The learned trial Court found
the Appellant nos.6 to 13 guilty under sections 304 Part-II/149
of the I.P.C. holding that being the members of unlawful
assembly, they had knowledge that an offence of culpable
homicide was likely to be committed by them being present at
the spot and using the weapons. It was further held that the
accused persons formed an unlawful assembly in prosecution of
their common object to commit the murder of both the
deceased, who were cutting trees and were armed with weapons
and as such they are liable under section 148 of I.P.C. and
accordingly, all the appellants were found guilty under section
148 of I.P.C.
Contentions of the Parties:
7. Mr. Saroj Kumar Routray, learned Amicus Curiae
appearing for the appellants argued that there are contradictions
in the evidence of two eye witnesses i.e. P.W.14 and P.W.18
relating to the participation of the appellants in the assault of the
two deceased and though A-6DillipNaik, A-10PruthibiNaik and A-
12BasantNaik have been found guilty under section 304 part-
II/149 of the I.P.C., but none of the eye witnesses have
attributed any specific overt act against these three appellants
Criminal Appeal No.321 of 1996 Page 12 of 46
except stating that they came to the spot being armed with
deadly weapons for which they were held guilty under section
148 of I.P.C. Learned Amicus Curiae further submitted that
though the A-7 Lambodar Naik and A-9 Pramod Naik have been
found guilty under section 304 Part-II/149 of the I.P.C., but in
the dying declaration of the deceased Igni Naik recorded by
P.W.1, the names of A-7 and A-9 did not find place which was
relied upon by the learned trial Court and the eye witnesses have
not stated that these two appellants participated in the assault of
the deceased Panchu Naik and therefore, the learned trial Court
was not justified in convicting appellant nos.6, 7, 9, 10 and 12
under sections 304 Part-II/149 of the I.P.C. merely because they
were in the unlawful assembly holding weapons. Learned Amicus
Curiae further submitted that in view of the available materials
on record, it is the fit case where the benefit of doubt should be
extended in favour of the appellants.
Mr. Sarat Kumar Pradhan, learned Additional
Standing Counsel appearing for the State of Odisha, on the other
hand, supported the impugned judgment and submitted that
even though there are some contradictions in the evidence of the
two eye witnesses i.e. P.W.14 and P.W.18 relating to the specific
overt act attributed against different appellants, but otherwise,
Criminal Appeal No.321 of 1996 Page 13 of 46
their evidence is consistent and therefore, it is not a case to
interfere with the impugned judgment and order of conviction
and as such the appeal should be dismissed.
Whether the deceased persons met with homicidal
death?:
8. Adverting to the contentions raised by the learned
counsel for the respective parties, let us first examine the
evidence on record as to how far the prosecution has proved that
both the deceased met with homicidal death.
The evidence of P.W.27, the doctor, who conducted
the post mortem examination over the dead body of the
deceased Panchu Naik on 06.03.1993 in F.M.T. Department,
M.K.C.G. Medical College & Hospital indicates that he noticed the
following injuries:
External Injuries:
1. Cut wound 21 cm. x 3 cm. x cranial cavity
deep exposing the skull bone underlying with a
cut fracture of 9 cm. long through which the
brain matter was coming out on the frontal
region more towards right situated 14.5 cm.
above and back to glabella. Matting of scalp hair
with blood present;
Criminal Appeal No.321 of 1996 Page 14 of 46
2. Cut wound 3 cm. x 0.6 cm. x scalp thickness
on the right frontal region 8 cm. above the mid-
point of right eye brow. Matting of scalp hair
with blood present;
3. Cut wound 9 cm. x 1 cm. involving the skull
bone underlying with a cut fracture of 9 cm.
long on the left parietal region mostly towards
vertex 12 cm. above the root of the left ear.
Matting of scalp hair with blood present;
4. Pressure abrasion 9 cm. x 0.7 cm. situated on
the right deltoid region 4 cm. below the lateral
end of right clavicle;
5. Abrasion 2 cm. x 2 cm. at the back of right
elbow soiled with dust and sand particles;
6. One „L‟ shaped abrasion, the vertical limb of
„L‟ measures 9 cm. and horizontally limb of „L‟
measures 3 cm. situated on the right lateral side
of the abdomen and lower chest;
7. Cut wound spindle shaped regular margins
with acute angle at both ends placed obliquely
on the back towards right including the mid-line
of size 7 cm. x 2 cm. x muscle and spine of
vertebra deep situated 14 cm. below the tip of
7th cervical spine corresponding to 7th thoracic
vertebra;
8. Abrasion 2 cm. x 1 cm. in the centre of which
there was a punctured wound of 1 cm. x 0.5 cm.
with regular margins and acute angles at both
Criminal Appeal No.321 of 1996 Page 15 of 46
extremities vertically placed on the right ankle
11 cm. above the lateral malleolus and 1.5 cm.
in front. The wound has involved the muscles of
the lateral aspect of right leg and has gone up to
3 cm. deep;
9. Cut wound 2 cm. x 1 cm. x muscle deep
placed on the outer aspect of right ankle 9 cm.
above the lateral malleolus and 1 cm. back to
the injury no.3;
10. Cut wound 3 cm. x 1 cm. with regular
margins which has involved upto bone deep
where the underlying fibula bone along with the
upper portion of lateral malleolus of right ankle
was exposed and has been fractured into three
pieces;
11. Punctured wound 1 cm. x 0.5 cm. x 3 cm.
muscle deep with muscle involvement on the
medial aspect of left leg 17 cm. below the
medial condyle of the left tibia. Dry blood-stains
were sticking to it;
12. Parallel bruise 2 in nos. each measuring 12
cm. x 1 cm. with intervening normal skin of 1
cm. adjacent to each other reddish violet in
colour placed horizontally on the right side back
just below and in front of right scapula;
13. Parallel bruise 10 cm. x 1 cm. with 1 cm.
intervening normal skin on the outer aspect of
right side chest wall corresponding to 7th rib.
Criminal Appeal No.321 of 1996 Page 16 of 46
Internal Injuries:
1. Corresponding to external injury no.1, there
was a cut fracture of 9 cm. long from its right
extremity a fissure fracture extends outwards
and downwards on right half of the frontal bone
for 5 cm. and on its left extremity, the left
fronto-pareital suture was separated. The left
side frontal scalp on its under surface looks
contused. The under surface of the scalp
corresponding to the external cut wound the
margins were contused. The meninges
underlying was cut for 9 cm.;
2. Corresponding to external injury no.2, the
under-surface scalp wound margins were
contused;
3. Corresponding to external injury no.3, there
was a cut fracture of 9 cm. along with shelving
of posterior bony cut margins in relation to
anterior cut margin on the bone. The meninges
underlying the cut fracture was intact. The scalp
wound margins on its under surface was
contused;
4. The right temporal muscles in its anterior half
was contused and infiltrated with extravasated
clotted blood corresponds to external scalp
wound no.1 on its extension;
5. Corresponding to external injury no.7, there
was a cut injury to the muscles on the back at
Criminal Appeal No.321 of 1996 Page 17 of 46
the wound site which travels downwards and
forwards to involve the 7th thoracic spine of the
vertebra causing fracture of the spinous process
and lateral process of 7th thoracic vertebra with
extravasation and infiltration of blood around
the fracture site and the muscles surrounding it.
The covering on the spinal cord and the spinal
cord itself has been contused at the
corresponding site;
6. Corresponding to external injury no.8, there
was cut wound on the muscles at the
corresponding site with extravasation and
infiltration of blood;
7. Corresponding to external injury no.10, the
underlying fibula bone at its lower end with the
upper portion of malleolus has been fractured
and was associated with extravasation and
infiltration of blood around the fracture site;
8. Corresponding to external injury no.11, the
punctured would has gone upto 3 cm. deep in
the muscles where there was extravasation and
infiltration of blood;
9. There was fracture of tibia bone of left leg its
middle with extravasated clotted blood
surrounding the fracture site;
10. There was a thin layer of subdural
haemorrhage on the left side hemisphere;
Criminal Appeal No.321 of 1996 Page 18 of 46
11. The brain on its right frontal lobe was cut for
5 cm. downwards involving the sagittal border of
left frontal lobe. The brain looks pale. The
dimension of brain cut was 9 cm. x 1 cm. x 4
cm.
P.W.27 has opined that the external and internal
injuries were ante mortem in nature and all the injuries were
fatal in ordinary course of nature to cause death. He further
opined that the external injury nos.1, 2 & 3 and their
corresponding internal injuries were fatal and sufficient to cause
death. He further opined that death was due to injury to vital
organ like brain i.e. craniocerebral injuries and the time since
death was about 24 to 30 hours since the time of post-mortem
examination. He further opined that external injury nos.1, 2, 3,
7, 9 and 10 might have been caused by any heavy or moderately
heavy cutting weapons. The pressure abrasion i.e. external
injury no.4 might have been caused by the edge of the some
cutting weapon. The external injury nos.5 and 6 might have
been caused by falling on any hard and rough and blunt surface
or object. The external injury nos.8 and 11 might have been
caused by any pointed weapon having cutting edge on either
side. The parallel bruises i.e. injury nos.12 and 13 could have
Criminal Appeal No.321 of 1996 Page 19 of 46
been caused by lathi blow. He proved the post mortem
examination report vide Ext.21.
Nothing has been brought out in the cross-
examination of P.W.27 by the learned defence counsel to
disbelieve his testimony.
Similarly, P.W.26, the doctor who conducted the post
mortem examination of the deceased Igni Naik on 07.03.1993 in
Addl. P.H.C. has noticed the following injuries:
1. One sharp cutting injury of size 8 cm. x 0.5
cm.x 1 cm. situated over left side back of the
chest;
2. One sharp cutting injury of size 8 cm. x
0.5cm. x 1 cm. situated over left side back of
the chest;
3. One sharp cutting injury 5 cm. x 0.5 cm. x 2
cm. situated over right side chest wall back;
4. Another sharp cutting injury 5 cm. x 0.5 cm.
x 2 cm. situated over right side back of the
chest wall;
5. Sharp cutting injury 2 cm. x 0.5 cm. x 1 cm.
situated over left side chest wall;
6. Sharp cutting injury 3 cm. x 2 cm. x 3 cm.
situated over left elbow with dislocation of left
elbow joint.
Criminal Appeal No.321 of 1996 Page 20 of 46
He has opined that the injuries nos.1 to 6 were ante
mortem in nature and caused by sharp cutting weapons. The
cause of death was due to haemorrhage on account of multiple
injuries and the nature of death was homicidal. Time since death
was more than 18 hours. He has proved the post mortem report
marked as Ext.20.
Nothing has been elicited in the cross-examination of
P.W.26by the learned defence counsel to disbelieve his
testimony.
Therefore, apart from the inquest report of both the
deceased and other evidence available on record, the medical
evidence adduced by P.W.26 and P.W.27 coupled with the
findings in the post mortem examination reports (Exts.20 and
21), we are of the view that the learned trial Court is quite
justified in holding both the deceased, namely, Panchu Naik and
Igni Naik died homicidal death, which is also not challenged by
the learned counsel for the appellants.
Assessment of evidence of eye witnesses P.W.14 and
P.W.18:
9. The two star witnesses examined on behalf of the
prosecution are P.W.14 Habuli Naik and P.W.18 Debaki Naikani
and they are the eye witnesses to the occurrence.
Criminal Appeal No.321 of 1996 Page 21 of 46
P.W.14 has stated that the accused persons came in
a body by holding different weapons like axe, kati, tangia, sword
and they arrived near deceased Panchu Naik, who was working
with him. A-3 Basant Naik dealt a pharsa blow on the head, A-2
Babu @ Babula Naik dealt a sword blow on the back and A-5
Bidu @ Bidyadhar Naik (dead) dealt axe blow to the leg of the
deceased Panchu Naik, for which he fell down on the ground due
to assault.
So far as the deceased Igni Naik is concerned,
P.W.14 has stated that A-1 Bhagya @ Bhagirathi Bisoi dealt a
steel sword blow on the left hand, A-4 Aruna Naik (dead) dealt
kati blow on the back, A-11 Bijuli Naik (dead) dealt kati blow on
the back, A-9 Pramod Naik dealt a small kati blow on the leg of
the deceased Igni Naik respectively. He has further stated that
he was present at one side of the place of the assault and seen
the entire occurrence. He further stated that after the
occurrence, the accused persons fled away from the spot and the
injured persons were found lying on the ground in a pool of
blood and he along with others carried the injured persons to
MundaMorei Bus stand and while they were so carrying to Aska
Hospital for treatment, deceased Panchu Naik succumbed to his
injuries at MundaMorei Bus stand and they left the dead body of
Criminal Appeal No.321 of 1996 Page 22 of 46
the deceased Panchu Naik at the Bus stand and carried the
injured Igni Naik to Aska Hospital for treatment and admitted
him in the hospital and then he came to Aska police station and
lodged the verbal report before the police.
In the cross-examination, it has been elicited about
the civil dispute between the parties and it has also been elicited
that this witness is a party to 107 Cr.P.C. proceeding which was
there between the parties. Though some confrontations have
been made by the learned defence counsel with respect to the
previous statement made by this witness before the investigating
officer, but we find there are no such material contradictions in
the evidence and therefore, the evidence of P.W.14 has not been
shattered in the cross-examination.
P.W.18 Debaki Naikani was the widow of the
deceased Igni Naik and mother of the deceased Panchu Naik.
She has stated that the accused persons came by holding
weapons to the spot and she was present on the ridge of the
tank at that time. She further stated that A-1 Bhagya @
Bhagirathi Bisoi dealt a sword blow on the head, A-2 Babu @
Babula Naik dealt a pharsa blow on the neck, A-3 Basant Naik @
Bapana dealt sword blow to the left side neck and A-5 Bidu @
Bidyadhar Naik (dead) dealt kati blow on the head of the
Criminal Appeal No.321 of 1996 Page 23 of 46
deceased Panchu Naik respectively, who fell down on the ridge
sustaining injuries throughout his body.
So far as her husband deceased Igni Naik is
concerned, she has stated that the accused Dura dealt kati blow
on the left hand, A-9 Pramod Naik dealt a razor blow on the
back, A-4 Aruna Naik dealt chella blow to the waist, A-7
Lambodar Naik dealt pharsa blow to the back and A-5 Bidu @
Bidyadhar Naik dealt chella blow to the abdomen of her husband
respectively, who fell down on the ground with severe bleeding
injuries. She has further stated that after the assault, the
accused persons fled away from the spot and her husband was
shifted to Aska hospital for treatment and her son Panchu Naik
died at MundaMorei bus stand and her husband died on the next
day during course of his treatment.
In the cross-examination of P.W.18, the defence has
elicited that the accused persons were twenty one in numbers
and after assaulting her son Panchu Naik, they came to her
husband Igni Naik and all the accused persons dealt four to five
strokes with their weapons. She further stated that appellants
were holding eight to ten axes and also similar number of katis.
Some confrontations were made with reference to her previous
statement recorded by the I.O. (P.W.25), but we find that there
Criminal Appeal No.321 of 1996 Page 24 of 46
are no such material contradictions in the evidence of P.W.18
and therefore, the evidence of P.W.18 relating to the
participation of some of the appellants in the assault of the
deceased has not been shaken in the cross-examination.
Learned Amicus Curiae argued that so far as the
assault on deceased Panchu Naik is concerned, in view of the
evidence of two eye witnesses, though the implication of A-2
Babu @ Babula Naik and A-3 Basant Naik @ Bapana is
consistent, but so far as A-1 Bhagya @ Bhagirathi Bisoi is
concerned, even though P.W.18 has implicated him in the assault
and stated that he started the assault by dealing sword blow on
the head of the deceased Panchu Naik, but P.W.14 is totally
silent relating to any assault made by the A-1 Bhagya @
Bhagirathi Bisoi to the said deceased. It is the further submission
of the learned Amicus Curiae that since the A-1 Bhagya @
Bhagirathi Bisoi has been implicated by only one of eye
witnesses i.e. P.W.18 in the assault of the deceased Panchu
Naik, for which he was found guilty under section 302/149 of the
I.P.C., he should be given benefit of doubt.
Mr. Sarat Chandra Pradhan, learned Addl. Standing
Counsel, on the other hand, submitted that both the witnesses
were at different places and watching the occurrence and there
Criminal Appeal No.321 of 1996 Page 25 of 46
were number of accused persons being armed with different
weapons and in such a scenario, the possibility of P.W.14
missing of assault by A-1 Bhagya @ Bhagirathi Bisoi is probable
and therefore, merely because P.W.14 has not implicated A-1
Bhagya @ Bhagirathi Bisoi in the assault of the deceased Panchu
Naik, the evidence of P.W.18 in that respect cannot be
disbelieved, more particularly, when the doctor (P.W.27) has
noticed corresponding injury on the head, which is possible by
sharp cutting weapon.
After carefully examining the evidence of two eye
witnesses i.e P.W.14 and P.W.18, we are of the humble view that
possibility of the assault by A-1 Bhagya @ Bhagirathi Bisoi on the
deceased Panchu Naik going unnoticed by P.W.14 is probable
since there were number of accused persons present at the spot
and they were holding different weapons. When participation of
A-1 Bhagya @ Bhagirathi Bisoi as deposed to by P.W.18 has not
been shaken in the cross-examination and it is getting
corroboration from the medical evidence, the same cannot be
disbelieved merely because the other eye witness i.e. P.W.14 has
omitted to name him in the assault of the deceased Panchu Naik.
Therefore, we find from the materials available on record that
the three appellants i.e. A-1 Bhagya @ Bhagirathi Bisoi, A-2
Criminal Appeal No.321 of 1996 Page 26 of 46
Babu @ Babula Naik and A-3 Basant Naik @ Bapana along with
A-5 Bidu @ Bidyadhar Naik (dead) are liable for the commission
of murder of deceased Panchu Naik and the oral evidence
coupled with the medical evidence is clinching in nature in that
respect. Though the learned trial Court has also found the
involvement of A-4 Aruna Naik (dead) in such murder, but we do
not find any material in that respect. Therefore, the number of
active participants in such murder has gone down to four. Since
it is apparent that A-1 Bhagya @ Bhagirathi Bisoi, A-2 Babu @
Babula Naik and A-3 Basant Naik @ Bapana along with A-5 Bidu
@ Bidyadhar Naik (dead) being armed with sharp cutting
weapons came together to the spot and assaulted to the
deceased Panchu Naik on vital parts of the body and thereby
committed his murder and left the spot together, we are of the
view that they shared common intention to commit such murder.
In case of Chittarmal -Vrs.- State of Rajasthan
reported in (2003) 24 Orissa Criminal Reports (SC) 664, it
is held as follows:-
"14. It is well settled by a catena of decisions
that Section 34 as well as Section 149 deal with
liability for constructive criminality i.e. vicarious
liability of a person for acts of others. Both the
sections deal with combinations of persons who
Criminal Appeal No.321 of 1996 Page 27 of 46
become punishable as sharers in an offence.
Thus they have a certain resemblance and may
to some extent overlap. But a clear distinction is
made out between common intention and
common object in that common intention
denotes action in concert and necessarily
postulates the existence of a pre-arranged plan
implying a prior meeting of the minds, while
common object does not necessarily require
proof of prior meeting of minds or pre-concert.
Though there is substantial difference between
the two sections, they also to some extent
overlap and it is a question to be determined on
the facts of each case whether the charge under
Section 149 overlaps the ground covered by
Section 34. Thus, if several persons numbering
five or more, do an act and intend to do it, both
Sections 34 and Section 149 may apply. If the
common object does not necessarily involve a
common intention, then the substitution of
Section 34 for Section 149 might result in
prejudice to the accused and ought not,
therefore, to be permitted. But if it involves a
common intention, then the substitution of
Section 34 for Section 149 must be held to be a
formal matter. Whether such recourse can be
had or not must depend on the facts of each
case. The non-applicability of Section 149 is,
therefore, no bar in convicting the appellants
under Section 302 read with Section 34 IPC, if
Criminal Appeal No.321 of 1996 Page 28 of 46
the evidence discloses commission of an offence
in furtherance of the common intention of them
all."
In the case of Dhanna -Vrs.- State of Madhya
Pradesh reported in (1996) 10 Supreme Court Cases 79, it
is held as follows:-
"7. The High Court found that there was no
unlawful assembly as the strength of the
assembly was insufficient to constitute it into
"unlawful assembly". But if the court enters
upon a finding that any of the remaining persons
who participated in the crime had shared
common intention with the main perpetrators of
the crime, the court is not helpless in seeking
the aid of Section 34 (I.P.C.) to enter a
conviction against such persons arraigned as
accused. This is despite the difference between
the scope of Section 34 and Section 149. Yet
they have some resemblance between each
other and are to some extent overlapping
(Barendra Kumar Ghosh -Vs.- Emperor :
AIR 1925 PC 1).
8. Legal position on this aspect remained
uncertain for a time after this Court rendered a
decision in Nanak Chand -Vs.- The State of
Punjab: (1955) 1 SCR 1201. But the doubt
was cleared by a Constitution bench of this
Court in William Slaney -Vs.- State of M.P. :
Criminal Appeal No.321 of 1996 Page 29 of 46
AIR 1956 SC 116, where this Court observed
at para 86, thus;
"Sections 34, 114 and 149 of the Indian
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 and the
constructive 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."
9. It is, therefore, open to the Court to take
recourse to Section 34 of I.P.C. even if the said
section was not specifically mentioned in the
charge and instead Section 149 I.P.C. has been
included. Of course, a finding that the assailant
Criminal Appeal No.321 of 1996 Page 30 of 46
concerned had a common intention with the
other accused is necessary for resorting to such
a course. This view was followed by this Court in
later decisions also. Amar Singh -Vs.- State of
Haryana :AIR 1973 SC 2221, Bhoor Singh
and Anr. -Vs.- State of Punjab : AIR 1974
SC 1256."
Similar view was also taken in the case of Jai Singh
@ Bandu and Another -Vrs.- State of Maharashtra reported
in 1996 Supreme Court Cases (Cri) 672, wherein it is held
that omission to frame a charge or departure from the charge
cannot invalidate conviction unless prejudice has been caused.
Thus, the conviction of the A-1 Bhagya @ Bhagirathi
Bisoi, A-2 Babu @ Babula Naik and A-3 Basant Naik @ Bapana is
altered from section 302/149 of the I.P.C. to section 302/34 of
the I.P.C.
10. Coming to the assault on the deceased Igni Naik,
learned Amicus Curiae argued that P.W.14 has implicated
appellants i.e. A-1 Bhagya @ Bhagirathi Bisoi and A-9 Promod
Naik apart from the appellants A-4 Aruna Naik and A-11 Bijuli
Naik (who are now dead) in the assault of the deceased and it is
stated that A-1 Bhagya @ Bhagirathi Bisoi used steel sword and
assaulted on the left hand of the deceased and A-9 Pramod Naik
Criminal Appeal No.321 of 1996 Page 31 of 46
assaulted by a kati on the leg of the deceased, whereas P.W.18
has not whispered that A-1 Bhagya @ Bhagirathi Bisoi dealt any
blow to the deceased Igni Naik and though she has implicated A-
7 Lambodar Naik in the assault of Igni Naik, but the same has
not been deposed to by P.W.14. She also implicated A-4 Aruna
Naik and A-5 Bidu @ Bidyadhar Naik in the assault, who are now
dead. He further argued the learned trial Court has not placed
any reliance on the oral evidence adduced by these two eye
witnesses relating to the assault on the deceased Igni Naik
rather placed reliance on the dying declaration of the deceased
Igni Naik recorded by P.W.1 vide Ext.1/1 in which only the
implication of A-1 Bhagya @ Bhagirathi Bisoi, A-3 Basant Naik @
Bapuni and A-5 Bidu @ Bidyadhar Naik (dead) are there. He
further argued that there is no clinching evidence against A-6, A-
7, A-9, A-10 and A-12 to hold them guilty under section 304
Part-II/149 of I.P.C. and therefore, they should be acquitted of
such offence.
Mr. Pradhan, learned counsel for the State argued
that the learned trial Court has rightly not placed reliance on the
evidence of two eye witnesses so far as the assault on the
deceased Igni Naik is concerned, but accepted the dying
declaration of the deceased Igni Naik recorded by P.W.1, but
Criminal Appeal No.321 of 1996 Page 32 of 46
since it has been proved that A-6, A-7, A-9, A-10 and A-12 were
the members of unlawful assembly and came to the spot being
armed with deadly weapons in the company of other accused
persons who directly participated in the assault of the deceased
persons, therefore, apart from the offence under section 148 of
I.P.C., they were held guilty under section 304 Part-II/149 of
I.P.C. as they had knowledge being the members of the unlawful
assembly that an offence of culpable homicide was likely to be
committed by using deadly weapons and therefore, the
conviction of A-6 Dillip Naik, A-7 Lambodar Naik, A-9 Promod
Naik, A-10 Pruthibi Naik and A-12 Bishnu Bishoi @ Naik is
justified.
Whether the dying declaration of the deceased Igni Naik
is believable?
11. On perusal of the dying declaration recorded by
P.W.1, the Medical Officer, we find that he not only treated the
the deceased Igni Naik but also referred the case to M.K.C.G.
Medical College & Hospital and on the request of the police,
recorded the dying declaration in which the deceased implicated
only three persons in his assault i.e. A-1 Bhagya @ Bhagirathi
Bisoi, A-3 Basant Naik @ Bapana and A-5 Bidu @ Bidyadhar
Naik. The doctor has enquired about the mental condition of the
Criminal Appeal No.321 of 1996 Page 33 of 46
deceased and found it to be normal. He further stated that at the
time of such recording, only hospital staff was present apart
from two to three police personnel. He stated to have handed
over the dying declaration sheet to police on requisition. P.W.1
was the treating doctor and there is no evidence that the
deceased was tutored by anyone to make such declaration and
that in view of the injuries sustained by him, he could not have
made any statement or dying declaration. Nothing has been
elicited in the cross-examination to dislodge the evidence of
P.W.1 relating to dying declaration. Therefore, it is clear that
there is nothing in the dying declaration against A-6 Dilip Naik,
A-7 Lambodar Naik, A-9 Promod Naik, A-10 Pruthibi Naik and A-
12 Bishnu Bisoi @ Naik. Though the name of A-9 Promod Naik
finds place in the assault of the deceased Igni Naik in the
evidence of P.W.14 and the names of A-7 Lambodar Naik and A-
9 Pramod Naik find place in the assault of the deceased Igni Naik
in the evidence of P.W.18, but since the names of these
appellants do not find place in the dying declaration of the
deceased Igni Naik, no importance can be attached to the
evidence of P.W.14 and P.W.18 relating to the implication of A-7
Lambodar Naik and A-9 Pramod Naik in the assault of the
deceased Igni Naik.
Criminal Appeal No.321 of 1996 Page 34 of 46
Therefore, except the mere presence of A-6 Dillip
Naik, A-7 Lambodar Naik, A-9 Pramod Naik, A-10 Pruthibi Naik
and A-12 Bishnu Bishoi @ Naik in the unlawful assembly being
armed with weapons, there is no evidence of any specific overt
act against them either in the assault of deceased Panchu Naik
or deceased Igni Naik. There is no evidence that they played any
active role in the occurrence of assault. There is no evidence of
any active mind on their part in furtherance of their common
object. There is no material to come to a finding that they knew
before hand that the offence actually committed was likely to be
committed in prosecution of the common object. There is no
sufficient evidence on record to show that they intended to or
knew the likelihood of commission of such offending act.
Section 149 of I.P.C. has essentially two ingredients
viz. (i) offence committed by any member of an unlawful
assembly consisting five or more members and (ii) such offence
must be committed in prosecution of the common object (under
Section 141 I.P.C.) of the assembly or members of that
assembly knew to be likely to be committed in prosecution of the
common object. For common object, it is not necessary that
there should be a prior concert in the sense of a meeting of the
members of the unlawful assembly, the common object may
Criminal Appeal No.321 of 1996 Page 35 of 46
form on spur of the moment; it is enough if it is adopted by all
the members and is shared by all of them. In order that the case
may fall under the first part, the offence committed must be
connected immediately with the common object of the unlawful
assembly of which the accused were members. (Ref: Bhanwar
Singh and Ors. -Vs.- State of M.P. : (2008) 16 Supreme
Court Cases 657). Even if the offence committed is not in direct
prosecution of the common object of the assembly, it may yet
fall under second part of Section 149 I.P.C. if it can be held that
the offence was such as the members knew was likely to be
committed. The expression 'know' does not mean a mere
possibility, such as might or might not happen. For instance, it is
a matter of common knowledge that if a body of persons go
armed to take forcible possession of the land, it would be right to
say that someone is likely to be killed and all the members of the
unlawful assembly must be aware of that likelihood and would be
guilty under the second part of Section 149 I.P.C. There may be
cases which would come within the second part, but not within
the first. The distinction between the two parts of Section 149
I.P.C. cannot be ignored or obliterated. (Ref: Mizaji and Anr.
-Vs.- State of U.P. : AIR 1959 SC 572; Gangadhar Behera
and Ors. -Vs.- State of Orissa : AIR 2002 SC 3633).
Criminal Appeal No.321 of 1996 Page 36 of 46
However, once it is established that the unlawful assembly had
common object, it is not necessary that all persons forming the
unlawful assembly must be shown to have committed some
overt act. For the purpose of incurring the vicarious liability
under the provision, the liability of other members of the
unlawful assembly for the offence committed during the
continuance of the occurrence, rests upon the fact whether the
other members knew before hand that the offence actually
committed was likely to be committed in prosecution of the
common object. (Ref: Daya Kishan -Vs.- State of Haryana :
(2010) 5 Supreme Court Cases 81; Sikandar Singh -Vs.-
State of Bihar : (2010) 7 Supreme Court Cases 477;
Debashis Daw -Vs.- State of W.B. : (2010) 9 Supreme
Court Cases 111). The crucial question for determination in
such a case is whether the assembly consisted of five or more
persons and whether the said persons entertained one or more
of the common objects specified by Section 141 of I.P.C. While
determining this question, it becomes relevant to consider
whether the assembly consisted of some persons which were
merely passive witnesses and had joined the assembly as a
matter of idle curiosity without intending to entertain the
common object of the assembly. (Ref: Masalti -Vs.- State of
Criminal Appeal No.321 of 1996 Page 37 of 46
Uttar Pradesh : AIR 1965 SC 202). In K.M. Ravi and Ors.
-Vs.- State of Karnataka reported in (2009) 16 Supreme
Court Cases 337, the Hon‟ble Supreme Court observed that
mere presence or association with other members alone does not
per se be sufficient to hold every one of them criminally liable for
the offences committed by the others unless there is sufficient
evidence on record to show that each intended to or knew the
likelihood of commission of such an offending act. Similarly in
State of U.P. -Vs.- Krishanpal and Ors. reported in (2008)
16 Supreme Court Cases 73, the Hon‟ble Supreme Court held
that once a membership of an unlawful assembly is established,
it is not incumbent on the prosecution to establish whether any
specific overt act has been assigned to any accused. Mere
membership of the unlawful assembly is sufficient and every
member of an unlawful assembly is vicariously liable for the acts
done by others either in prosecution of common object or
members of assembly knew were likely to be committed. In
Amerika Rai and Ors. -Vs.- State of Biharreported in
(2011) 4 Supreme Court Cases 677, the Hon‟ble Supreme
Court opined that for a member of unlawful assembly having
common object what is liable to be seen is as to whether there
was any active participation and the presence of all the accused
Criminal Appeal No.321 of 1996 Page 38 of 46
persons was with an active mind in furtherance of their common
object. The law of vicarious liability under Section 149 I.P.C. is
crystal clear that even the mere presence in the unlawful
assembly, but with an active mind, to achieve the common
object makes such a person vicariously liable for the acts of the
unlawful assembly. In the case of Charan Singh -Vs.- State of
U.P. reported in (2004) 4 Supreme Court Cases 205, it is
held that the crucial question to determine is whether the
assembly consisted of five or more persons and whether the said
persons entertained one or more of the common objects, as
specified in Section 141 of I.P.C. The word 'object' means the
purpose or design and in order to make it 'common', it must be
shared by all. In other words, the object should be common to
the persons, who compose the assembly, that is to say, they
should all be aware of it and concur in it. A common object may
be formed by express agreement after mutual consultation, but
that is by no means necessary. It may be formed at any stage
by all or a few members of the assembly and the other members
may just join and adopt it. Once formed, it need not continue to
be the same. It may be modified or altered or abandoned at any
stage. The expression 'in prosecution of common object' as
appearing in Section 149 I.P.C. has to be strictly construed as
Criminal Appeal No.321 of 1996 Page 39 of 46
equivalent to 'in order to attain the common object'. It must be
immediately connected with the common object by virtue of the
nature of the object. There must be community of object and the
object may exist only up to a particular stage, and not
thereafter. In the case of Bhanwar Singh -Vs.- State of
Madhya Pradesh reported in (2008) 16 Supreme Court
Cases 657, the Hon‟ble Supreme Court held that the common
object of the unlawful assembly in question depends firstly on
whether such object can be classified as one of those described
in Section 141 I.P.C. Secondly, such common object need not be
the product of prior concert, but as per established law, may
form on the spur of the moment. Finally, the nature of this
common object is a question of fact to be determined by
considering nature of arms, nature of the assembly, behaviour of
the members, etc. Where general allegations are made against a
large number of persons, the Court would categorically scrutinise
the evidence and hesitate to convict the large number of persons
if the evidence available on record is vague. It is obligatory on
the part of the Court to examine that if the offence committed is
not in direct prosecution of the common object, it yet may fall
under second part of Section 149 I.P.C., if the offence was such
as the members knew was likely to be committed. Further
Criminal Appeal No.321 of 1996 Page 40 of 46
inference has to be drawn as what was the number of persons;
how many of them were merely passive witnesses; what were
their arms and weapons. Number and nature of injuries is also
relevant to be considered. "Common object" may also be
developed at the time of incident. (Ref: Ramachandran and
Ors. -Vs.- State of Kerala : (2011) 9 Supreme Court Cases
257).
In view of the settled position of law as discussed
above and the materials available on record, the conviction of A-
6 Dillip Naik, A-7 Lambodar Naik, A-9 Promod Naik, A-10 Pruthibi
Naik and A-12 Bishnu Bishoi @ Naik under section 304 Part-
II/149 of I.P.C. is not sustainable in the eyes of law and hence
set aside.
Conviction of the appellants under section 148 I.P.C.
12. The evidence of the two eye witnesses i.e. P.W.14
and P.W.18 indicate that appellants along with others came in a
body by holding different weapons like axe, kati, tangia and
sword. It is of course correct that except the accused persons
who participated in the assault of the two deceased, it has not
been stated specifically about the nature of weapons held by the
other accused persons. However, no questions have been put by
the defence in that respect in the cross-examination nor it has
Criminal Appeal No.321 of 1996 Page 41 of 46
been brought out that any of the accused persons were not
armed with any deadly weapons.
When there is rioting simplicitor, offence is
punishable under section 147 of I.P.C. When such rioting is
committed by a particular accused or persons having deadly
weapons or with anything which, used as a weapon of offence is
likely to cause death, offence is punishable under section 148 of
I.P.C. „Rioting‟ has been defined under section 146 of I.P.C.
which lays down that whenever force or violence is used by an
unlawful assembly, or any member thereof, in prosecution of the
common object of such assembly, every member of such
assembly is guilty of offence of rioting.
The offence under Section 148 of I.P.C. is an
aggravated form of the offence under Section 147 of I.P.C.
Section 147 of I.P.C. deals with the punishment for the offence
of rioting, whereas Section 148 of I.P.C. deals with the
punishment for the offence of rioting being armed with deadly
weapon. If one member of an unlawful assembly is armed with a
deadly weapon, the other members cannot on that account be
charged under Section 148 of I.P.C. (Ref: Nanda Kishore -Vs.-
State : A.I.R. 1961 Orissa 29 and In re Mathuswami
Goundan and Ors. : A.I.R. 1942 Mad. 420). A person cannot
Criminal Appeal No.321 of 1996 Page 42 of 46
be found guilty under Section 148 of I.P.C. unless he actually
holds a dangerous weapon. Hence unless that condition is
satisfied, he cannot be held constructively guilty under Section
148 of I.P.C. by reason of Section 149 of I.P.C. It is not
necessary for the prosecution to prove that the accused persons
who were armed with deadly weapons used such weapons to
convict them under section 148 of I.P.C. When force or violence
is used by an unlawful assembly or by any member thereof in
prosecution of the common object of such assembly, the offence
of rioting as described under section 146 of I.P.C. is attracted
and each member of such assembly is to be held guilty for such
offence and out of such members of unlawful assembly, the
persons who were armed with deadly weapon or anything which
used as a weapon of offence, is likely to cause death can be held
liable for the offence under section 148 of I.P.C. Section 349 of
I.P.C. defines „force‟. As soon as force or violence is used, the
offence of rioting is complete.
In view of the evidence of the eye witnesses, it is
apparent that A-1 Bhagya @ Bhagirathi Bisoi, A-2 Babu @
Babula Naik, A-3 Basanta Naik @ Bapanna, A-6 Dillip Naik, A-7
Lambodar Naik, A-9 Pramod Naik, A-10 Pruthibi Naik and A-12
Bishnu Bisoi @ Naik were armed with deadly weapons being the
Criminal Appeal No.321 of 1996 Page 43 of 46
members of the unlawful assembly and even though out of them
only A-1 Bhagya @ Bhagirathi Bisoi, A-2 Babu @ Babula Naik
and A-3 Basanta Naik @ Bapanna have used the deadly weapons
in the assault of the deceased but all of them can be held guilty
under section 148 of I.P.C. Therefore, the conviction of these
appellants under section 148 of the I.P.C. stands confirmed.
The learned trial Court while convicting A-1 Bhagya
@ Bhagirathi Bisoi, A-2 Babu @ Babula Naik and A-3 Basanta
Naik @ Bapanna under section 148 of I.P.C. has not imposed any
separate sentence, however, while holding A-6 Dillip Naik, A-7
Lambodar Naik, A-9 Promod Naik, A-10 Pruthibi Naik and A-12
Bishnu Bisoi @ Naik guilty under section 148 of I.P.C., sentenced
each of them to undergo R.I. for one year. These appellants
were on bail during trial and after conviction, they were also
released on bail in this appeal. In view of the fact that more than
32 years have passed since the date of occurrence, keeping in
view their age at present, we reduce the sentence imposed
under section 148 of the I.P.C. to period already undergone.
Conclusion:
13. In view of the foregoing discussions, A-1 Bhagya @
Bhagirathi Bisoi, A-2 Babu @ Babula Naik andA-3 BasantNaik@
Bapana are found guilty under section 302/34 of I.P.C.The
Criminal Appeal No.321 of 1996 Page 44 of 46
sentence passed by the learned trial Court for the offence under
section 302/149 of the I.P.C. is awarded for the offence under
section 302/34 of I.P.C. The conviction of these three appellants
under section 148 of the I.P.C. stands confirmed, but as held by
the learned trial Court, no separate sentence is imposed for such
offence.
The conviction of A-6 Dillip Naik, A-7 Lambodar Naik,
A-9 Pramod Naik, A-10 Pruthibi Naik and A-12 Bishnu Bisoi @
Naik under section 304 Part-II/149 of the I.P.C. is set aside.
However, their conviction under section 148 of the I.P.C. stands
confirmed, but the sentence passed thereunder by the learned
trial Court is reduced to period already undergone.
A-1 Bhagya @ Bhagirathi Bisoi, A-2 Babu @ Babula
Naik, A-3 Basant Naik @ Bapana who are on bail as per the
order of this Court dated 10.05.2004 in Misc. Case No.218 of
2003 are directed to surrender within a period of four weeks
from today to undergo the sentence, failing which, the learned
trial Court shall take coercive steps for their arrest.
In the result, Criminal Appeal is allowed in part.
Before parting with the case, we would like to put on
record our appreciation to Mr. Saroj Kumar Routray, the learned
Amicus Curiae for rendering his valuable help and assistance
Criminal Appeal No.321 of 1996 Page 45 of 46
towards arriving at the decision above mentioned. The learned
Amicus Curiae shall be entitled to his professional fees which is
fixed at Rs.10,000/- (rupees ten thousand only). This Court also
appreciates the valuable help and assistance provided by Mr.
Sarat Chandra Pradhan, learned Additional Standing Counsel.
The trial Court records with a copy of this judgment
be communicated to the concerned Court forthwith for
information and necessary action.
................................
S.K. Sahoo, J.
…………………………….
Chittaranjan Dash, J.
Orissa High Court, Cuttack
The 1st July, 2025/Sipun/Rajesh
Criminal Appeal No.321 of 1996 Page 46 of 46
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