Judgment:
R.K. Patra, J.
1. Appellant Khagapati Gouda along with one Siba Bhotra was indicted in the Court of Sessions Judge, Koraput under Section 302 read with Section 34 IPC for having committed the murder of Sukru Gouda. The learned Sessions Judge acquitted Siba Bhotra of the charge on benefit of doubt. The appellant, however, has been found guilty and has been convicted under Section 302 IPC simpliciter. He has been sentenced to undergo imprisonment for life. In this appeal, the said conviction and sentence are under challenge.
2. Briefly stated the prosecution case is that the appellant was the nephew of the deceased Sukru Gouda who was issueless. He brought the appellant to his house at Marijaniguda and kept him as his son since about one year prior to his murder. The appellant used to quarrel with the deceased as the latter did not gi ve any land to him. The other accused Siba Bhotra is a friend of the appellant. On 4-11 1991 in the morning the appellant and the co-accused Siba Bhotra took the deceased Sukru Gouda to village Ushigaon to take liquor in the house of Hata Delapati (P.W. 1). After taking liquor all of them left the house of P.W. 1 at about 5 p.m. In the night, the appellant and the co-accused Siba Bhotra came to the village and told Tulsa (P.W. 5), the widow of the deceased that they killed Sukru by means of a stone in the land of one Katulu Jani. Hearing this P.W. 5 along with others including the appellant and the co-accused Siba Bhotra went to the spot and found Sukru Gouda lying dead with injuries on his left side head. After the matter was reported at the local police station, police took up investigation and on its completion charge-sheeted the appellant and the co-accused Siba Bhotra under Section 302/34 IPC which has ultimately resulted in the conviction of the appellant under Section 302 IPC simpliciter, as aforesaid.
3. The plea of the appellant was one of denial.
4. It is not disputed before us that the death of Sukru Gouda was homicidal. P.W. 4, the doctor who conducted autopsy, found the following injuries:
External injuries:
1. Echymosis was present in the left axillary area 2' x 2'.
2. Lacerated wound size 6 cms. x 1.5 cms. x skin deep on the left occipital area 2 cms. above the mastoid process.
3. Congestional laceration in the inner side of lips 1/2' x 1/2' each.
Internal injuries:
On disSection fracture of skull bone extending from the left portion to a point 5 cms. behind the left mastoid process. Length of fracture line was 181/2 cms. Another fracture line in the frontal area 81/2 cms. extending from the pterion (sic) transversely. Another fracture line extending from the side of impact and joining with the first fracture line. Membranes were torn at the site of impact. Two pieces of bone were easily removed. Extra-dural, sub-dural and intra cerebral haemorrhage were noticed.
According to the doctor, the injuries were antemortem in nature and were sufficient in the ordinary course of nature to cause death. He opined that the death was due to haemorrhage to vital organ like brain.
5. There is no eye witness to the occurrence. The learned Sessions Judge on the basis of the following items of evidence has held the appellant guilty under Section 302 IPC. They are: (i) the deceased was last seen with the appellant and the co-accused before his death as stated by P.Ws. 1, 2, 3 and 5; and (ii) extra-judicial confessions before P.W. 5, the widow of the deceased.
6. The learned counsel for the appellant contended that the evidence in the case being discrepant and the extra-judicial confession said to have been made by the appellant before P.W.5 being unreliable, the appellant cannot be held guilty for commission of the offence of murder. We have perused the evidence of P.W. 5. She is the widow of the deceased. The appellant is no other than her nephew. She has clearly deposed that on the date of occurrence, the appellant and the co-accused took her husband at about 10 a.m. to take liquor in village Ushigaon and in the night the appellant and the co-accused came to her and informed that her husband was killed by them by means of stone. On being asked as to where the dead body was lying, they informed her that it was lying in the land of Katulu Joni. Accordingly she along with one Labanya Patra (P.W. 6) went to the spot and found her husband lying dead in the land. She further deposed that the village panchayat was convened and the appellant and the co-accused admitted to have killed her husband. Although there is some suggestion that in the village Panchayati where the appellant confessed his guilt, the village Choukidar was present, we have no hesitation to accept the clear and categorical statement of P.W. 5 that in the night the appellant being accompanied by the co-accused came to her and confessed that they had killed her husband by means of stone. There is no reason why P.W. 5 would falsely implicate the appellant when her husband brought him and kept him as their son.
7. The next question that arises for consideration is whether the learned Sessions Judge is justified in law in convicting the appellant under Section 302 IPC simpliciter when he and Siba Bhotra were charged under Section 302/34 IPC and the said co-accused Siba Bhotra has been acquitted. The charge that was framed against the appellant and the co-accused Siba Bhotra reads as follows :
That you on or about the 4th day of November, 1991, at 6 p.m. at Lohara Tikra Dangar near village Isigam Parjaguda, in furtherance of your common intention, did commit murder by intentionally causing the death of Sukru Gouda by assaulting on his head and other parts of body with stones and thereby committed an offence punishable under Section 302/34 of the Indian Penal Code...
8. The entire gravemen of the charge is that the appellant shared the common intention with the co-accused Siba Bhotra and in furtherance of it committed the murder. The co-accused having been acquitted, the element of sharing common intention with him disappears. In such situation, prosecution is obliged to prove the exact nature of injuries caused by the appellant and whether those injuries were of the character which w6uld bring the case within Section 302 IPC. There is no positive evidence in the case to hold as to which particular injury was inflicted by the appellant and which injury sustained by the deceased was responsible for his death. Therefore, his conviction under Section 302 IPC simpliciter is unsustainable in law. The appellant, however, cannot escape from his individual-liability of having caused injury to the deceased. He can, therefore, safely be convicted for having caused grievous hurt punishable under Section 325 IPC. In support of the aforesaid conclusion, we may briefly refer to the following decisions:
In Baul v. State of U. P., AIR 1968 SC 728: (1968 Cri LJ 872), the Supreme Court held that when the common intention was not proved and one accused was acquitted, the other accused cannot be convicted under Section 302 IPC simpliciter unless it. is established that injuries caused by the said accused were of the character which would bring the case within Section 302 IPC.
In Karnail Singh v. State of Punjab, AIR 1977 SC 893: (1977 Cri LJ 550) what had happened was that there was charge against two accused persons under Section 302/34 IPC. The Sessions Judge acquitted the second accused but convicted the first accused under Section 302 IPC simpliciter. The said conviction was upheld by the High Court holding that he assaulted the deceased. The Supreme Court held that the second accused having been acquitted, the charge under Section 302/34 IPC disappeared and what was to be considered is what offence the first accused had committed. As there was no evidence to show as to what particular injuries were caused on the deceased by the first accused although he was armed with a kirpan and used the same in assaulting the deceased he was convicted under Section 326 IPC as the offence of grievous hurt.
In State of Jammu & Kashmir v. Hazra Singh, AIR 1981 SC 451 : (1980 Cri LJ 1501) the injury which caused the death of the deceased was attributed to Piyara Singh and Hazara Singh was sought to be made vicariously liable for that injury by the operation of Section 34 IPC. The Court held that assuming that a substance of the prosecution case against Hazara Singh was proved, then also as a result of acquittal of Piyara Singh, Section 34 became inapplicable and Hazara Singh would be liable under Section 326 IPC for causing grievous hurt to the deceased.
9. In the result, the conviction and sentence of the appellant recorded under Section 302 IPC simpliciter are hereby set aside. He is found guilty under Section 325 IPC and is convicted thereunder. He is sentenced to undergo rigorous imprisonment for three years. With the above modification, the appeal is dismissed.
10. The appellant is in custody since his arrest on 5-11-1991 and has already suffered the imprisonment now awarded. He may accordingly be set at liberty forthwith.
R.K. Dash, J.
11. I agree.