Before concluding that the appellants have vicarious culpability, the court shall be satisfied that the main perpetrator and his associates are constructively responsible for any act done by the latter previous to their meeting. The court shall be satisfied with the preceding hearing. The judgment was passed by The High Court of Orissa in the case of Kaleswar Majhi and Others Vs the State of Odisha [CRA No.96 of 2002] by Division Bench consisting of Hon’ble Shri Justice. S.K. Panigrahi.
The appellants assail their conviction under Section 302, 449 and 342 read with Section 34 of the Indian Penal Code, by the learned Sessions Judge, wherein they have been sentenced to undergo imprisonment for life under Section 302/34 of the Penal Code and also to undergo imprisonment for life under Section 449/34 of the Penal Code. But, no separate sentence was passed for their conviction under Section 342/34 of the Penal Code. It was further directed vide the aforesaid impugned judgment that the above said two sentences were to run concurrently.
Learned and Sessions Judge, concluded that the prosecution has proved its case beyond all reasonable doubt against the present appellants and, therefore, proceeded to convict them under the Penal Code.
Learned Counsel for the appellants does not dispute the homicidal nature of the death of the deceased. He also does not dispute the guilt of accused Munu Majhi who murdered the deceased. However, counsel for the appellants very emphatically submits that the conviction of the appellants under Section 302/34 of the Penal Code is not sustainable in this case.
Learned Counsel for the respondent, on the other hand, submits that conviction of the appellants under Section 302/ 34 of the Penal Code is proper and requires no interference.
While clearing the contention to punishment the court observed that “the offence under Section 449 of the Penal Code is not made out, as the prosecution has failed to prove that the appellants have committed house-trespass to commit any offence punishable with death. Since the appellants are acquitted of the charge under Section 302/34 of the Penal Code, the offence under Section 449/34 of the Penal Code is not made out. Rather, the offence under Section 448/34 of the Penal Code is made out against the appellant. Therefore, the offence under Section 449/34 is converted to an offence under Section 448/34 of the Penal Code as the appellants found guilty of committing house-trespass.”
While allowing the petition the court held that “there is no clear and cogent material on record to show that the appellants who brought the deceased from his house and tied him to a tree and then assaulted him by means of lathis did not have any intention of committing his murder.”