Orissa Vs. Arjun Das Agrawal ANR  INSC
273 (13 August 1999)
S.N.Phukan PHUKAN, J.
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
Sessions Judge, Koraput in Sessions Case No. 134/85 by judgment dated 2nd
April, 1986 after appreciation of the 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 I.P.C., accused Kishanlal Kamini, Manmohan Das alias Manu Bangali, Prafulla
Kumar Pradhan and Arjun Das Agrawala under Section 302/149 I.P.C.
trial court also found accused Radheshyam Agrawala, Uttam Kumar Behra, Devi Misra,
Babuli alias Sudhansu Sekhar Das guilty and convicted them under Section 451
and 427 I.P.C. Other accused persons were found not guilty and acquitted them.
Dallip Kumar Chand was sentenced to death.
Kishanlal Kamini, Prafulla Kumar Pradhan, Manmohan Das alias Manu Bangali and Arjun
Das were sentenced to under go 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.
Division Bench of the High Court in death reference No. 1 of 1986 and Criminal
Appeal Nos. 72 to 74, 81,82 and 88 of 1986 by judgment dated 27.1.1987 allowed
the appeals of Arjundas Agarwal and Manmohan Das and were acquitted. The death
reference and appeal of Dallip 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 PradhanKishnlal
Kamani, Radheshyam Agarwal, Devi Prasad Misra, Sudhansu Sekhar Das alias Babuli
and Utam Kumar Behera were dismissed.
State of Orissa has filed the present appeal in
respect of acquittal of Manmohan Das and Arjun Das Agarwal.
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 Narala road and at the time of occurrence he closed its 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 deceased told them that Chapati
would not be available and they could be served with rice. As soon as hotel boy
opened the door accused Debi Misra, Babuli alias Sudhansu Das, Uttam Behera and
Radheshyam Agrawala went 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 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 when
she tried to rescue her husband, accused Manmohan Das pushed 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 was being assaulted 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.
carried her deceased husband to Narla Hospital and she also 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.
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 under Sections 302/149
and 302/34 IPC.
case of the prosecution rests mainly on the evidence of Radhamani Panda -PW1
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 the hotel of the deceased and Bhaskar
Panda-PW4 who was the cook in the hotel of the deceased.
the courts below believed the above eye witnesses. In fact the High Court has
recorded after carefully going through the evidence of the above eye witnesses
that they were natural, competent, trustworthy and reliable witnesses.
According to the High Court, their evidence finds substantial corroboration
from the medical evidence and, therefore, the trial court rightly placed
reliance on their evidence.
have also been taken through the evidence of the above witnesses 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 accused-respondent Manmohan Das @ Manu Bangali has drawn our
attention to some of the contradictions, we are of the opinion, as recorded by
the High Court that these were minor in nature and cannot demolish the case of
Panda - PW1 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 the employee.
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 pulled down the electric
wires. It had been mentioned that at that time there was no supply of
electricity and lamps were burning. PW1 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 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-1) 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 Manmohan Das
@ Manu Bangali pushed her back and she fell down. According to her accused- Arjun
Agarwal was instigating to beat her 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 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 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 PW1 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 blow on the left side of belly of the
to him accused Kishan 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 PW1 inasmuch as according
to this witness when PW1 came to the room accused respondent Manmohan Das @
Manu Bangali pushed her back, thereafter the assailants dragged the deceased to
the verandah 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 PW1 and others rescued the deceased and carried him back.
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 Agarwala, Prafulla and Kishan Kamani.
witness did not see the entire incident as he went to attend the call of nature
on the back side of the hotel .
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
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 PW1
in the truck.
Panda - P.W. 4 was working as cook in the hotel of the deceased and he had
supported 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 Agarwala he had stated that this accused
asked others to finish him(deceased) soon.
the evidences of the above witnesses the prosecution has been able to prove
that accused-respondent Manmohan @ Manu Bangali was present at the place of
occurrence and he took active part by holding the beard of the deceased and
also resisting PW1 wife of the deceased to go to rescue her husband. Regarding
accused-respondent Arjuna 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 accused Dillip Chand or any other action was taken by any other
acquittal of accused-respondent Manmohan Das @ Manu Bangali the High Court had
not recorded any acceptable reason. Regarding accused-respondent Arjunadas 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 out side 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 lathi but it was not
corroborated by the medical evidence, therefore, the High Court held that
conviction of accused-respondent Arjunadas Agarwal under Section 302/149 IPC is
sessions Judge convicted Dallip Chand under Section 302 IPC and accused Kishanlal
Kamani, Manmohan Das @ Manu Bangali, Prafull Kumar Pradhan and Arjun Das Agrawala
under Section 302/149 IPC the division bench of the High Court convicted Dallip
Chand under Section 302/34 IPC and appeals of Prafulla Kumar Pardhan, Kishanlal
Kamani, Radheshyam Agarwal, Devi Prasad Misra, Sudhansu Sekhar Das @ Babuli and
Uttam Kumar Behera were dismissed.
stated earlier the trial court framed charges against accused persons under
Section 302/34 IPC and under Section 302/149 IPC. A question may arise as to
whether if an accused is charged under Section 302/149 IPC can he be convicted
under ection 302/34 IPC.
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
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 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 the time of committing of that
offence, is a member of the same assembly, is guilty of that offence.
Court also considered the same question. This Court referred to an earlier
decision in Bharwad Mepa Dana and persons were charged with offences under
Section 302 read with Sections 149 and 34 IPC. 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 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
trial court convicted accused Dillip Kumar Chand under Section 302 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 allowed the appeal of
accused persons Manmohan Das @ Manu Bengali and Arjun Das Agrawala. In view of
the ratio laid down by this court in Mahabir Gope (Supra) and Jagir Singh
(Supra), this Court in this appeal accused Manmohan Das @ Manu Bengali and Arjun
Das Agrawala can be convicted under Section 302/34 IPC.
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, 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
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 Radhamnai Panda-PW1 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
above evidence on record is sufficient for us to come to the finding 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 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. 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 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 cuasing death of the deceased or that he actually participated in
the criminal act. Therefore, High Court rightly acquitted this 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 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.