Orissa High Court Acquits Five in 1993 Double Murder Case, Modifies Conviction for Others

Cuttack, Odisha – In a significant ruling on a criminal appeal pending for nearly three decades, the Orissa High Court has set aside the conviction of five individuals for culpable homicide, emphasizing that mere presence in an unlawful assembly, even while armed, is insufficient to establish guilt without evidence of an "active mind" or knowledge that such an offence was likely to be committed.

The Division Bench, comprising Justice S.K. Sahoo and Justice Chittaranjan Dash , partially allowed the appeal arising from a 1993 double murder case. The Court upheld the murder conviction for three main accused but altered the charge from Section 302/149 IPC to Section 302/34 IPC.

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Background of the Case

The case dates back to March 5, 1993, when a violent clash over a civil dispute occurred on the embankment of a village tank. An unlawful assembly of nineteen individuals, armed with deadly weapons like swords, axes, and iron rods, attacked Panchu Naik and his father, Igni Naik. Both victims succumbed to their injuries.

In 1996, the 1st Additional Sessions Judge, Berhampur, convicted thirteen of the accused. - Appellants 1-5 were found guilty of murder under Sections 148 and 302/149 of the IPC and sentenced to life imprisonment. - Appellants 6-13 were convicted for culpable homicide not amounting to murder under Sections 304 Part-II/149 and rioting under Section 148 of the IPC, receiving a five-year sentence.

The present appeal was filed by the convicted individuals, five of whom passed away during the long pendency of the case.

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Key Arguments

The learned Amicus Curiae, Mr. Saroj Kumar Routray, argued for the appellants, highlighting contradictions in eyewitness testimonies and the lack of specific overt acts attributed to several appellants convicted under Section 304 Part-II. He contended that their conviction was based merely on their presence in the unlawful assembly.

The State, represented by Mr. Sarat Chandra Pradhan, Additional Standing Counsel, defended the trial court's judgment, arguing that eyewitness accounts were largely consistent and minor contradictions should not be a ground for acquittal.

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Court's Analysis and Legal Principles

The High Court conducted a meticulous review of the evidence, including the testimonies of two eyewitnesses (P.W.14 and P.W.18) and a crucial dying declaration from the deceased Igni Naik.

On Murder Conviction (Section 302 IPC): The Court found the evidence against three appellants—Bhagya @ Bhagirathi Bisoi (A-1), Babu @ Babula Naik (A-2), and Basant Naik @ Bapana (A-3)—to be clinching for the murder of Panchu Naik. Their active participation was corroborated by eyewitness accounts and medical evidence. Since the number of active participants was less than five, the court altered their conviction from vicarious liability under Section 302 read with Section 149 (unlawful assembly) to Section 302 read with Section 34 (common intention).

On Culpable Homicide Conviction (Section 304 Part-II IPC): The court acquitted five appellants—Dillip Naik (A-6), Lambodar Naik (A-7), Promod Naik (A-9), Pruthibi Naik (A-10), and Bishnu Bisoi @ Naik (A-12)—of the charge under Section 304 Part-II/149 IPC. The bench noted that while their presence in the armed assembly was established, the prosecution failed to prove they shared the common object of murder or knew that culpable homicide was likely to be committed.

The Court articulated a crucial distinction in the application of Section 149 IPC:

"Except the mere presence of A-6 Dillip Naik, A-7 Lambodar Naik, A-9 Pramod Naik, A-10 Pruthibi Naik and A-12 Bishnu Bishoi @ Naik in the unlawful assembly being armed with weapons, there is no evidence of any specific overt act against them... There is no evidence of any active mind on their part in furtherance of their common object. There is no material to come to a finding that they knew before hand that the offence actually committed was likely to be committed in prosecution of the common object."

Citing precedents, the court emphasized that for vicarious liability under Section 149 IPC, what matters is "whether there was any active participation and the presence of all the accused persons was with an active mind in furtherance of their common object."

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Final Judgment

1. Bhagya Bisoi (A-1), Babu Naik (A-2), and Basant Naik (A-3): Their conviction was altered to Section 302/34 IPC, and their life sentence was upheld. Their conviction for rioting under Section 148 IPC was also confirmed. They have been directed to surrender to serve their sentence.

2. Dillip Naik (A-6), Lambodar Naik (A-7), Promod Naik (A-9), Pruthibi Naik (A-10), and Bishnu Bisoi (A-12): Their conviction under Section 304 Part-II/149 IPC was set aside, and they were acquitted of this charge. However, their conviction under Section 148 IPC (Rioting, armed with deadly weapon) was confirmed, but the sentence was reduced to the period already undergone, considering that over 32 years have passed since the incident.

The judgment brings a long-drawn legal battle to a close, clarifying the nuanced requirements for establishing vicarious liability in cases involving unlawful assemblies.