Conviction under IPC requires specific overt acts; lack of direct evidence led to acquittal of murder charges and modification to lesser offense.

JUDGMENT :

Per Gautam Kumar Choudhary, J. The appellants have preferred this appeal against the judgment of conviction and sentence passed under Sections 147, 323, 307 and 302 of the IPC. Appeal preferred by Vijay Sahu (appellant no. 4) abated on his death and the instant appeal has been heard on behalf of other three appellants.

2. Informant of the case is Anand Sahu whose fardbeyan was recorded on 22.12.1995 at 20:30 hours at Doranda Hospital. As per the fardbeyan, appellant no.2- Munna Sahu had outraged the modesty of his six years old daughter on 16.12.1995 regarding which a fine of Rs.10,000/- was imposed on him by the Village Panchayat on 19.12.1995. The fine amount was paid at 10 O’ clock to the informant in the day time on 22.12.1995 by Munna Sahu. The matters did not end with the payment of fine, and the appellants at around 7O’ clock in the evening by forming an unlawful assembly came to the house of informant and started abusing them. On being opposed by informant and Kamta Sahu, appellants variously armed with lathi, Ballam (pointed weapon) started assaulting the informant and Kamta Sahu. On Hulla, villagers gathered there and interceded in the fight. It is further alleged that Bolo Sahu was caught hold by the appellants and thrown into a well, resulting in his death. Informant and Kamta Sahu were also seriously injured in the assault.

3. On the basis of the fardbeyan, Doranda P.S. Case No.333/95 was registered against altogether five accused persons including these appellants. Police on investigation, found the case true against the four original appellants who were put on trial for offence under Sections 147, 323, 307 and 302 of the IPC.

4. Altogether 13 witnesses have been examined on behalf of prosecution and relevant documents including post-mortem examination report, fardbeyan, injury report and inquest report, have been adduced into evidence and marked as Exhibit 1 – 7.

5. After prosecution evidence, statement of the accused persons were recorded under Section 313 of the Cr.P.C. Defence is of innocence, but no specific defence has been pleaded in the statement under Section 313 of the Cr.P.C. Two defence witnesses have also been examined.

6. Judgment of conviction and sentence has been assailed on the ground that charge under Sections 34 or 149 of the IPC has not been framed and therefore, principles of ‘constructive liability’ cannot be invoked to convict the accused persons. Unless and until there is specific overt act attributed to an accused, judgment of conviction and sentence cannot be returned against him. It is further argued that after the fine had been imposed by the Village Panchayat against appellant-Munna Sahu and the said amount had been duly paid, there was no occasion for them to launch an assault. It is argued that as a matter of fact, it was the informant party who were the aggressors regarding which appellant- Vijay Sahu had lodged Doranda P.S. Case No.334/95 on the very same day of incidence against informant and ten others under Sections 147, 148, 149, 324, 323, 337, 325, 307, 437/511 of the IPC.

7. It is argued that deceased- Bolo Sahu died an accidental death as a result of fall in the unfenced well at night.

8. Learned A.P.P. has defended the judgment of conviction and sentence. It is submitted that prosecution case is established by the testimony of injured witnesses who have deposed that they were assaulted by the appellants. Further, the post-mortem examination report of the deceased- Bolo Sahu substantiates the oral account of assault, as the deceased had suffered five ante-mortem injuries over the dead body and thereafter, he was thrown into a well causing his death by drowning.

FINDING

9. Where there is case and counter case arising out of the same incidence, with allegations and counter allegations of assault by both the sides, one of the tests to determine who was the assailant, is to see which party suffered more injuries. This is so because those who are the aggressors, come prepared