http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6

PETITIONER:

STATE OF ORISSA

Vs.

RESPONDENT:

ARJUN DAS AGRAWAL ANR.

DATE OF JUDGMENT: 13/08/1999

BENCH:

G.T.Nanavati, S.N.Phukan

JUDGMENT:

PHUKAN, J.

Sixteen persons were booked for trial under Sections

302/149, 302/34, 341/149, 449, 451/34, 427/34 and 323 Indian

Penal Code for causing death of deceased Bhagirathi Panda.

The Sessions Judge, Koraput in Sessions Case No. 134/85 by

judgment dated 2nd April, 1986 after appreciation of the

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.

The 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.

Accused Dallip Kumar Chand was sentenced to death.

Accused 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.

The 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.

The State of Orissa has filed the present appeal in

respect of acquittal of Manmohan Das and Arjun Das Agarwal.

The occurrence took place in the night of 17th July,

1982 at about 10.00 p.m. The deceased was running a hotel

at his residence at village Narala road and at the time of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6

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.

Radhamani 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.

In this appeal filed by the State we have to examine

whether the orders of acquittal passed by the Division Bench

of the High Court in respect of two accused respondents

namely Manmohan Das @ Manu Bangali and Arjun Das Agarwal

were based on the proper appreciation of evidence on record

or not? Both the above accused-respondents along with

others were charged under Sections 302/149 and 302/34 IPC.

The 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.

Both 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6

evidence and, therefore, the trial court rightly placed

reliance on their evidence.

We 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 the prosecution.

Radhamani 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.

Two accused persons namely Radha and Babuli asked for meal

by shouting and her deceased husband replied that only rice

would be available. At the request of the above accused

persons the door of the hotel was opened and four accused

persons entered inside and two of them caught hold the beard

of her deceased husband and thereafter they broke chairs,

tables and 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 deceased.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6

According 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.

Baikuntha Panda - PW3 brother of PW2 had deposed that

at that time he was at the betel nut shop in front of hotel

of the deceased. This witness identified accused respondent

Manmohan Das @ Manu Bangali and further stated that he knew

Dillip Chand, Arjuna Agarwala, Prafulla and Kishan Kamani.

This witness did not see the entire incident as he went to

attend the call of nature on the back side of the hotel .

When he heard the cries of the deceased he went inside the

room .Though this witness had not specifically stated the

part played by accused-respondent Manmohan Das @ Manu

Bangali but he categorically stated the presence of this

accused-respondent at the place of occurrence. Regarding

accused-respondent Arjuna 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.

Bhaskar 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.

From 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

accused persons.

Regarding 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 unsustainable.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6

Though, 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.

As 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.

This Court in Mahabir Gope Vs. State of Bihar 1963(3)

SCR 331 considered the question of conviction under Section

302/34 IPC and 302/149 IPC. In that case appellant and 11

other persons were charged under Sections 147 and 302/34

IPC. According to the prosecution the appellant and other

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.

In Jagir Singh Vs. State of Punjab 1967(3) SCR 256

this Court also considered the same question. This Court

referred to an earlier decision in Bharwad Mepa Dana and

another Vs. State of Bombay 196o (2) SCR 172 in which 14

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 Singh(Supra).

The 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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6

It is a settled position of law that Section 34 IPC

does not create a distinct offence and it is the

participation of the accused that the intention of

committing crime is established and Section 34 IPC is

attracted. To rope in a person with the aid of Section 34

IPC, prosecution has to prove that the criminal act was done

by actual participation of more than one person and that the

said act was done in furtherance of common intention of all

engaged at a prior concert.

Coming to the facts of this present case we find from

the evidence on record as extracted above that accused

Manmohan Das @ Manu Bangali went to the house of the

deceased along with other accused persons where accused

Dallip Chand gave knife blows to the deceased. We also find

that the accused- respondent Manmohan Das also prevented

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 deceased.

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.