1. These two appeals arose out of the common judgment of conviction and sentence passed by learned 1st Additional Sessions Judge, Seraikella in ST. No. 215 of 1999 in which the Appellants of these two appeals have been found guilty of the charge of committing murder of Pradip Mahanthy. The Appellant Dilip Kumar Samal has been found guilty of committing offence u/s 302 of the IPC and awarded sentence of life imprisonment and the Appellant Panchu Kaibarta has been convicted u/s 302 read with Section 120B of the IPC and has been awarded the sentence of life imprisonment.
2. As both the appeals arose out of the said common judgment, the same have been heard together and are being disposed of by this common judgment.
3. The prosecution against the Appellants was launched oh the basis of fardbeyan of Ghasi Ram Mohanthy (P.W. 8) dated 13.1.1999 who happened to be the father of the deceased Pradip Mohanthy.
4. The prosecution case, in brief, is that on 13.01.1999 at about 1.30 p.m. Dilip Samal had come to the house of the informant and proposed for going to the market for selling fish. The informant accompanied Dilip and went to the market at the place where informant''s son Pradip Mohanthy was already selling fish. Dilip Samal was having a Pankhi (Bathi) in his hand. When they reached in the market, Dilip Samal went to Panchu Kaibarta and had some conversation with him. At about 2 p.m. Dilip Samal started wandering in the market and declaring that today is the Bouri Festival (previous to Makarsankranti) and that he would kill Pradip. Thereafter he came, where the informant''s son was selling fish, and gave a heavy Baithi blow on his neck causing severe cut injury followed by profuse bleeding. Pradip rushed to hospital but he could not survive and succumbed to the injury. Informant alleged that the cause of incident was differences betweefi the informant''s son and Dilip regarding selling of fish as the informant''s son was selling fish at a lower price.
5. On the basis of the said fardbeyan police registered a case u/s 302/120B/34 IPC against the Appellants. After conclusion of investigation, charge sheet was submitted under the said penal sections.
6. Charges were framed under Sections 302/120B IPC. The accused/Appellants denied the charges and claimed to be tried.
7. Appellants took defence that Dilip Samal was in drunken condition. He was moving round the market having Baithi in his hand and the accused/Appellant Dilip Kumar Samal fell down over deceased causing injury on the neck of Pradip resulting in to his accidental death.
8. Prosecution, in order to prove charges against the Appellants, altogether examined nine witnesses. P.W. 1 Prabhat Kumar Mahto is a formal witness who has proved his signature on seizure list (Ext-1). P.W. 2 Prahalad Kumar Mahanty is the brother of the deceased, he has been examined as an eye witness; however he was not an FIR witness. P.W. 3 Firoz Aman is said to be present in the market at the time of occurrence and claimed to be an eye witness. P.W. 4 Dr. Radhika Kumari Sinha had conducted postmortem on the dead body of the deceased. P.W. 5 Sushil Kumar Sahu claimed to be an eye witness of the occurrence although in the FIR he is not named as an eye witness. P.W. 6 S.S. Sanasu another seizure list witness, proved his signature on the seizure list (Ext-1/1). P.W. 7 Mahendra Kaibarta is a tendered witness. P.W. 8 Ghasi Mahanty is the informant and father of the deceased. He proved his statement made in the fardbeyan and supported the prosecution version. P�.W. 9 Bharat Prasad Singh is the I.O. of the case. He has corroborated the prosecution case.
9. The defence has also examined two witnesses D.W. 1 Paku Sao and D.W. 2 Dhani Ram in support of the defence version. It appears from the statement made by the said witnesses that they tried to make out a case that the Appellant Dilip Kumar Samal was in inebriated condition on the said fateful day.
10. Learned trial court on conclusion of the trial came to the finding that the prosecution has been able to prove intentional murder of Pradip Mohanty by Dilip Kumar Samal by causing fatal injury with baithi on the neck of the deceased in criminal conspiracy with Panchu Kaibarta. Learned court below relied on the evidence of the informant (P.W. 8) supported by the other eye witnesses P.W. 2 Prahalad Kumar Mahanty, P.W. 3 Firoz Aman and P.W. 5 Sushil Kumar Sahu. P.Ws. 3 and P.W. 5 were said to be eye witness of the occurrence. Learned trial court further held that medical evidence supported the ocular evidence. P.W. 4 who conducted autopsy on the dead body of Pradip Mohanthy found deep cut injury on the neck and cheek of the deceased causing his death. Learned court below thus, convicted and sentenced the Appellants as aforesaid.
11. Mr. A.S. Dayal, learned Counsel for the Appellants in both the appeals has assailed the said judgment and submitted that from the evidences brought on record by the prosecution it could only be proved that Pradip died due to injury caused by Baithi which was seen in the hand of Dilip Kumar Samal. The prosecution has completely failed to prove pre-meditation, intention and conspiracy between the Appellants to kill Pradip Mohanthy. From the oral testimony of the prosecution as well as of the defence it can be gathered that the death of Pradip was accidental. Thus, this is not a case of culpable homicide amounting to murder and it comes within the exception 4 of Section 300, so far as the case of Dilip Kumar Samal is concerned. The prosecution has completely failed to establish charge u/s 120B against Appellant Panchu Kaibarta. Learned Counsel submitted that in order to establish the charge u/s 102B of the IPC, the prosecution has to prove that there was an agreement between the persons for doing of an unlawful act. There is no iota of evidence on record to show that there was any agreement between Dilip Kumar Samal and Panchu kaibarta for killing Pradip Mohanthy. Ingredient of criminal conspiracy is, therefore, conspicuously absent in this case; conviction of Panchu Kaibarta u/s 302 read with Section 120B of the IPC is wholly illegal and unsustainable. Learned Counsel submitted that court below has committed serious error of law as well as of fact holding the Appellants guilty and convicting and sentencing the Appellants.
12. Learned APP, on the other hand, supported the impugned judgment and submitted that there are cogent and clinching evidence on record to prove the charges against the Appellant. Four eye witnesses who were present and had seen the occurrence have been examined to support the prosecution case, out of them P.W. 3 and 5 are independent witnesses and their credibility and reliability cannot be doubted. Their testimonies find support from the evidence of the doctor (P.W. 4) who had found deep incised wound on the neck of the deceased caused by sharp cutting weapon. It has also come on record that just before incident took place there was talk and discussion between Dilip Kumar Samal and Panchu Kaibarta. That goes to prove conspiracy between the two Appellants. Learned Counsel submitted that conspiracy cannot be generally proved by any direct evidence and it has to be gathered and inferred from the facts and surrounding circumstances appearing on record. According to learned APP, prosecution has been able to prove the charges against the Appellants and the learned trial court has rightly convicted and sentenced them.
13. Having heard learned Counsel for the Appellants and learned APP, we scrutinized the materials on record. On scrutiny of the oral testimony of the prosecution witnesses, we find that P.W. 2 Prahalad Kumar Mahanty, P.W. 3 Firoz Aman, P.W. 5 Sushil Kumar Sahu and P.W. 8, the informant have fully corroborated the prosecution version and have proved the charge of murder against Dilip Kumar Samal. P.W. 2, in paragraph 1 has stated that Dilip Kumar Samal was armed with Baithi and in his presence had given Baithi blow on the neck of Pradip from behind which caused serious cut injury and Pradip had fallen down. P.W. 3 similarly supported the incidence. In paragraph ft, P.W. 3 has stated that Dilip Kumar Samal was not under intoxication. P.W. 5, another eye witness, in paragraph 1, stated that he had seen Dilip giving Baithi blow on the neck of the deceased from behind which caused severe cut injury. Pradip, thereafter, had fallen down and after sometime died. P.W. 8, the informant has consistently supported his version given in the FIR and has stated that in his presence Dilip had given Baithi blow on the neck of the deceased Pradip Mohanthy which causes severe injury and which ultimately caused death of his son. P.W. 4 the doctor who had conducted postmortem on the dead body of the deceased (Pradip Mohanthy), on examination had found incised wound 5"�3"�2" over right side of neck and cheek caused by sharp cutting weapon. She further found major blood vessels cut, cervical bone cut, huge amount of bleeding present, blood clot present, cervical muscles and bone cut. She opined that the death was within two hours before the postmortem examination. P.W. 9, the Investigating Officer stated that on getting information, he had immediately rushed to the place of occurrence and came to know that the injured was taken to hospital. He immediately went to the hospital where he found the injured dead. He recorded the fardbeyan of the informant''s father at about 3 p.m. (Ext-4). He has proved the inquest report (Ext-5).
14. The I.O. has proved that the place of occurrence was the fish stall of the informant in the open market situated in Gudri market. He had found huge amount of blood on the ground near the place of occurrence. Dilip had also given confessional statement. Baithi (fish cutter) was immediately recovered from the bush near the rented house of Kanta Devi. Seizure list (Ext-6) was prepared in presence of the accused. Baithi has been identified by P.W. 8 which has been marked material Ext -I.
15. On perusal of the judgment of the learned trial court, we find that he has discussed those evidences on record and after taking into consideration of the said evidences, has come to conclusion holding Dilip Kumar Samal guilty of committing offence u/s 302 of the IPC.
16. Learned trial court, has thus not committed any error in coming to his finding and convicting Dilip Kumar Samal. The prosecution case has been proved not only by the father and brother of the deceased who were present at the time of occurrence but also by two independent eye witnesses, P.W. 3 and 5 coupled with the medical evidence of P.W. 4, and the objective finding by the Investigating Officer. We, do not find any infirmity and illegality so far that part of judgment of learned court below is concerned.
17. However, on close scrutiny of the prosecution evidences, we find the absence of element of criminal conspiracy to establish the charge u/s 120B of the IPC, against Panchu Kaibarta. The evidences on record are too scanty to establish the charge against Panchu Kaibarta. P.W. 2 who is said to be the eye witness in paragraph 4 has clearly stated that though before the occurrence there was talk between Panchu and Dilip but he can not say what they were talking about. He has also clearly stated that there was no enmity between the deceased and Panchu Kaibarta. P.W. 3 in paragraph 1 has also stated that he could not hear as to what they were taking about. P.W. 5, the other eye witness has also stated that he could not hear the talk between Panchu and Dilip. P.W. 8, informant and father of the deceased has clearly stated that he could not say what Panchu and Dilip were talking about. In paragraph 6, he has clearly stated that the deceased had no enmity with Panchu kaibarta.
18. It is well established that for inferring criminal conspiracy there must be positive and cogent evidence. Though it is difficult to establish conspiracy by direct evidences, yet there must be some cogent evidence on record to come to that conclusion and to convict a person for committing offence of criminal conspiracy. In
19. Section 120A IPC defines criminal conspiracy and runs thus:
120A. Definition of Criminal conspiracy. - When two or more persons agree to do, or cause to be done:
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
20. It is, thus, clear from the proviso to the section that an agreement to commit the offence shall amount to a criminal conspiracy if some act is done by one or more party to such agreement in pursuance there of.
21. In the instant case, the only evidence appearing on record is of some talk between Panchu and Dilip Kumar Samal before the occurrence. There was no act on the part of Panchu Kaibarta following the talk. The evidences are clear on the point that he was not inimical to the deceased or to the informant''s family.
22. We, therefore, find it difficult to support conviction of Panchu Kaibarta for the offence u/s 302 with the aid of Section 120B of the IPC. We, therefore set aside the conviction and sentence of Panchu Kaibarta, the Appellant of Cr. A (DB) No. 381 of 2000.
23. In the result, we dismiss Cr.A. (DB) No. 421 Of 2000 filed by Appellant Dilip Kumar Samal and we allow Cr. A.(DB) No. 381 of 2000 filed by Appellant Panchu Kaibarta. We have been informed that Panchu Kaibarta is on bail, he is discharged from the liability of his bail bond.
