ARTA BHUJABAL Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order of conviction and sentence dated 20.11.1996 passed by the learned 1st Addl. Sessions Judge, Puri in S.T. Case No. 79/39C of 1993 convicting the appellants for commission of offence under Section 302/34 of the Indian Penal Code read with Sections 120B of the said Code. All the appellants have been sentenced to imprisonment for life for their conviction under Section 302/34 of the I.P.C. but no separate sentence has been passed for conviction under Section 120B of the I.P.C.

(2.) CASE of the prosecution is that in the evening of 22.1.1990 while the deceased Raghabananda Amaranth was reading newspaper in the Library of Milaca Sava Pakistan the appellants along with the absconding accused persons namely Bidyadhar Raisingh, Bhagaban Barisal and Pitabasa Jena (dead) entered into the campus of the library. Out of the accused persons, it is alleged that appellant No. 2 Rabi Jena, appellant No. 1 Arta Bhujabal and the absconding accused persons namely Bidyadhar Raisingh and Bhagaban Barisal entered into the library room and accused Bidyadhar stabbed on the abdomen of the deceased and all of them fled away leaving the Library room. The deceased shouted and soon after the same, informant (P.W.1) entered into the Library room and found the absconding accused persons Bidyadhar and three others escaping from the room. To prevent witnesses from running to the spot soon after the incident, it is further alleged by the prosecution that the accused persons threw bombs and fled away. After the accused persons decamped, the witnesses rushed to the spot and on being asked, the deceased declared that accused Bidyadhar Raisingh stabbed on his abdomen. He was thereafter removed to the Kanas Hospital and then to Puri Hospital where he succumbed to the injuries on 24.1.1990. On the basis of the written report submitted by P.W.1, a case was registered for commission of offences under Sections 448/326/307/34 of the I.P.C. read with Section 9(b) of the Indian Explosives Act. Investigation was taken up and on completion of investigation, charge -sheet was filed for commission of offence under Section 120B and 302/34 of the I.P.C. read with Section 9(b) of the Indian Explosives Act, 1984. It appears from the record that these appellants only faced trial and three of the charge -sheeted accused persons were absconding, out of whom one Pitabas Jena died, accused Bidyadhar Raisingh has not been tried till today and it is stated at the Bar that the other accused (absconding) Bhagaban Barisal is now facing trial.

(3.) LEARNED Counsel appearing for the appellants submitted that so far as assault on the deceased is concerned, it is solely attributed to the absconding accused Bidyadhar Raisingh and there is no allegation that any other accused person assaulted the deceased. It was contended by the learned Counsel for the appellants that there is no allegation of any kind of overt act by any of the appellants. Learned Counsel further contended that the dying declaration clearly shows that the absconding accused Bidyadhar Raisingh had alone entered into the room while the deceased was sitting and after the deceased was stabbed by the said absconding accused, the door was closed from inside by the deceased to save his life. If such dying declaration is accepted, it will be clear that none of the appellants had entered inside the room while the deceased was sitting and therefore none of them can be said to have committed murder of the deceased. So far as Sections 34 and 120B of the Indian Penal Code are concerned, it was contended by the learned Counsel appearing for the appellants that there is absolutely no material on record to show that there was a conspiracy or meeting of mind to do away with the life of the deceased prior to the occurrence and therefore the appellants could not have been convicted for commission of the offences under Section 34 or Section 120B of the Indian Penal Code. Learned Counsel for the State with reference to the evidence adduced before the Court submitted that the dying declaration made by the deceased clearly implicates the absconding accused Bidyadhar who is alleged to have assaulted the deceased by means of a knife. So far as the appellants are concerned, there is evidence to show that the appellants 1 and 2 had also accompanied the absconding accused persons into the library with arms though there is no allegation that they have stabbed the deceased. Conduct of the said two appellants clearly shows common intention of all the appellants to do away with the life of the deceased. It was contended by the learned Counsel for the State that all the appellants had gone to the institution together with arms and shared the same common intention as that of those accused persons who entered into the library and assaulted the deceased. In view of the above, the trial Court was justified in convicting the appellants for commission of offences as stated earlier even though there is no allegation that any one of the appellants had assaulted the deceased.