Hig High Court
Case Details
A IN THE HIG HIGH COURT OF ORISSA AT CUTTA UTTACK CRA No. 326 of 1998 (Arising out of the 1987, passed by Sr S. T. No.78/1996 (6 the Indian Penal Co l Code, 1860) the Judgment of conviction dated 25th of y Sri A. P. Das, 2nd Addl. Sessions Judge, (6/96), for the offence under section 302 of November, dge, Cuttack, in 302 and 307 of Dukha @ Krushna shna Behera …. Appellant Mr. Devashis Panda, Panda, Advocate -versus- State of Odisha …. Respondent R Mr. Aurovinda Moh Mohanty, ASC CORAM: THE HON THE HON’BLE HOO HON’BLE MR. JUSTICE S. K. SAHOO JAN DASH BLE MR. JUSTICE CHITTARANJAN Date of Judgment: 25.09.2025 Chittaranjan Dash, ash, J. 1. This Appe Appeal is directed against the judgment .1998 passed by the learned 2nd Additiona dated 25.11.1998 gment and order ditional Sessions Judge, Cuttack in ack in S.T. Case No.78 of 1996 (6/96), wherein the Appellant having aving been found guilty in the offences und under Section 302/307 of IPC IPC has been sentenced to undergo impris imprisonment for life for the offenc offence under Section 302 of IPC while n hile no separate sentence has been s been imposed for the offence under Sect r Section 307 of IPC. 2. The brief f brief facts giving rise to the present Appeal ppeal are that the Appellant, being t eing the driver of a Mini Truck bearing R ring Registration No. OR-05C-1646 1646, is alleged to have intentionally cause caused the death 1998 CRA No. 326 of 1998 Page 1 of 30 of four persons, rsons, namely, Alekha Samal, Rajib Nar b Narayan Das, Hrushikesh Rout, Rout, and Golakha Chandra Nayak, by cru by crushing them under the wheels heels of the said truck, which he drove drove rashly and rammed into the f o the footpath in front of certain shops at t at the market, where people had le had assembled for marketing. The furt e further charge against the Appel Appellant is that he attempted to commit mmit murder of Kalia @ Sukan Sukanta Patra (P.W.15), Dharua Sahu Sahu (P.W.10) Rabindranath Sahu h Sahu (P.W.8) and Bula @ Sridhar Behera ehera (P.W.9). It further appears th ars that the Appellant had married to Ku Kuni Behera (P.W.11), but thei ut their matrimonial life was strained, owin , owing to which his wife often stay n stayed in her parental home. The Appellan pellant suspected that Kalia @ Suka Sukanta Patra (P.W.15), a distant uncle o ncle of his wife, had developed an ped an illicit relationship with her. Desp Despite several efforts by the App e Appellant to bring back his wife to the m the matrimonial home, the same p ame proved futile, and he attributed this fa this failure to the alleged interferen rference of P.W.15. On 30.03.1995, th 95, the date of occurrence, the A the Appellant drove the aforesaid Mini Tru ini Truck to Pira Bazar from Cutta Cuttack, got down, and made enquiries iries from some persons regarding rding his dispute in securing the return of h rn of his wife. At that time, he cam e came across P.W.15 who was present resent there, and abused him allegin alleging that he was responsible for the dis the discord in his matrimonial life. life. A quarrel ensued between the App e Appellant and P.W.15, during wh ing which the Appellant, in a fit of anger, th ger, threatened to crush P.W.15 und under the wheels of the truck and lef nd left the spot. Thereafter, the Ap the Appellant drove the truck towards Salipu Salipur but soon returned to PiraBa Bazar and, while driving the vehicle at a cle at a very high speed, rammed it ed it into a group of people standing in f g in front of the shop of one Jyo e Jyoti Mohapatra @ Chandia, alleged legedly targeting 1998 CRA No. 326 of 1998 Page 2 of 30 P.W.15, who man o managed to jump aside and escaped. Ho . However, the truck ran over the er the aforesaid four persons, who died at th d at the spot, and also caused sever severe injuries to four others. The App e Appellant then abandoned the tru the truck in a nearby field. On the basi e basis of these allegations, one Pr one Prakash Chandra Behera (P.W.19) lodge lodged a written report on the sam e same day, whereupon Jagatpur P.S. Cas . Case No.32 of 1995 was registere gistered on 30.03.1995. In course o urse of the investigation, the police arrived rrived at the spot, held inquest over t over the dead bodies, sent them for p for post-mortem examination, iss , issued injury requisitions for the injure injured persons, examined witnesse itnesses, seized the vehicle, obtained the M. the M.V.I. report, apprehended the the Appellant, and upon completion of inv of investigation, submitted charge arge-sheet. 3. The plea o plea of the Appellant is one of complete plete denial and false allegations. T ions. The Appellant also pleaded that on t t on the relevant day, he was not dri not driving the Mini truck in question but ke but kept the same in the field whereu hereupon it was seized by the police. 4. To bring bring home the charges, the prosecution cution examined twenty witnesses esses in all. While P.W.1 is the betel sh etel shop owner, situated at Pira a bazaar and occurrence witness, P.W P.W.2 is an occurrence witnes witness, being a teacher in Madrasa. P.W. P.W.3 is a local person and is also is also an eye witness to the occurrence pre ce present at the spot. P.W.4 too is too is a businessman, having his garage at age at Pira bazar and an occurrence rrence witness. P.W.5 is also an occurrence rrence witness so also P.W.6, P.W.7 P.W.7, P.W.8, P.W.9. P.W.9 and P.W.10 are are the injured witnesses, P.W.11 P.W.11 is the occurrence witnesses, P.W , P.W.12 is the witnesses to the the seizure, P.W.13 is the doctor who who conducted 1998 CRA No. 326 of 1998 Page 3 of 30 autopsy over the r the dead bodies of Rajib Narayan Da n Dash, Alekha Samal, Hrusikesh ikesh Rout and Golokha Chandra Nayak. P.W ak. P.W.14 is the witness to the inqu he inquest, P.W.15 is Kalia @ Sukanta Kum ta Kumar Patra, a distant relative of of the wife of the Appellant allegedly to dly to have illicit affair with the w the wife of the Appellant, P.W.16 is the is the scientific officer, P.W.17 is .17 is the Assistant Surgeon who conduct nducted medical examination in res
Legal Reasoning
d has further clarified the position of law, as w, as follows – From the perusal of the provision of Section From 37. e IPC, it becomes manifest that Section of the IPC dies what the English authors describe a embodies ine of transfer of malice or the transmigratio doctrine of ve. Under the Section, if A intends to kill B motive. Un C whose death he neither intends nor k kills C wh elf to be likely to cause, the intention to kill C himself to b attributed to him. If A aims his shot at B, b law attribu es B either because B moves out of the range o misses B ei or because the shot misses the mark and hits shot or bec person C, whether within sight or out of other perso r Section 301, A is deemed to have hit C wit under Secti tion to kill him. What is to be noticed is th intention to e Section 301 of the IPC, A shall not have invoke Sec tion to cause the death or the knowledge that intention to to cause the death of C. This Section lays d likely to ca culpable homicide may be committed by ca that culpab of a person whom the offender neither inte death of a new himself to be likely to kill. If the killing nor knew h in the course of doing an act which a p place in th ds or knows to be likely to cause death, it mu intends or k Section 301 ection 301 ribe as the igration of kill B, but nor knows kill C is by at B, but it range of the d hits some ut of sight, C with the d is that to t have any e that he is lays down by causing er intended illing takes h a person , it must be 1998 CRA No. 326 of 1998 Page 19 of 30 treated as actually car d as if the real intention of the killer had lly carried out. r had been 38. Havi Section 301 to refer to l In Gyanend 1972 SC 5 shoot at a f School Com maternal un victim and act of the Section 302 Having noticed salutary principles on w on 301 of the IPC is based, it would be instru fer to law on the point as laid down by this C nendra Kumar v. State of U.P., reported in SC 502 the accused was deliberately tryin t at a fleeing man who had criticized his fathe ol Committee Meeting, but unfortunately, his rnal uncle came in between him and the inte and thus got killed. This Court has held tha of the accused was nothing but murder u on 302 read with Section 301 of the IPC. on which instructive this Court. rted in AIR y trying to s father in a ly, his own he intended eld that the rder under 39. reported in accused wa a shot at him deceased. A appellant w A or 307 of Court has h In Hari Shankar Sharma v. State of M In ted in 1979 UJ 659 (SC), the intention o sed was to kill prosecution witness No. 15 by f t at him, but the accused shot the fire and kille ased. A plea was raised before this Court tha llant would be guilty of offence under Section 307 of the IPC. While negativing the said plea t has held as under: f Mysore tion of the 15 by firing d killed the urt that the ection 304- id plea, this “This a This appeal under the Supreme Court (Enlarge of Crim f Criminal Appellate Jurisdiction) Act is dir gainst the judgment of the Mysore High against convicti onvicting the appellant under Section 302 sentenc entencing him to imprisonment for life. De acts of the case have been narrated in the judg facts of f the High Court and it is not necessary for of the H eproduce the same here. The main allegation ag reprodu e appellant was that he had shot the dec the app azirunnissa and Killadher. So far as the fact Nazirun oncerned both the Sessions Judge and the concern ourt have concurrently found that the case was Court h roved. The Sessions Judge was of the opinion proved. e first appellant wanted to kill PW. 15, but as the first 5 was not available at that time, Nazirunnissa 15 was between and she was shot, therefore the app in betw ould be guilty of an offence under Section 304( could b nder Section 307 IPC. This view of the le under S essions Judge was legally erroneous as ri Session ointed out by the High Court. Section 301 furn pointed a comp complete answer to the view taken by the Ses udge. It is obvious that the appellant has the inte Judge. I nlargement is directed igh Court 302 and e. Detailed e judgment y for us to tion against e deceased e facts are the High se was fully pinion that but as PW. nissa come e appellant n 304(A) or the learned as rightly 1 furnishes he Sessions he intention 1998 CRA No. 326 of 1998 Page 20 of 30 kill PW.15 and if with this intention, he to kill is undoubtedly guilty omebody also, he somebo ommitting murder. There is evidence of PWs. 1 commit nd 15 to show that A.1 fired that shot and kille and 15 eceased. There is no escape from conclusion th decease ppellant committed an offence under Section 3 appellan the IPC e IPC. In these circumstances, the High Cour ight in correcting the error of law committed b right in earned Sessions Mr. Udayarathnam, tried to Learned e case of the appellant within the ambit of Se the case 04(a) or Section 307 but on the fact found it i 304(a) ossible for us to accede to her contention. Fo possible easons given above, there is no merit in the ap reasons hich is accordingly, dismissed.” which i n, he kills guilty of Ws. 13, 14 d killed the ion that the tion 302 of Court was itted by the ed to bring Section nd it is not on. For the the appeal, 40. AIR 1991 S shot at Surj Singh. Afte contemplat has held tha Section 302 In Jagpal Singh v. State of Punjab report In 1991 SC 982: 1991 CrLJ 597, appellant Jagpa at Surjit Kaur even though he aimed at only K h. After applying doctrine of transfer of mali mplated under Section 301 of the IPC, this C eld that Jagpal had made himself punishable u on 302 of the IPC. reported in t Jagpal had only Kapur f malice as , this Court hable under 41. reported in prosecution the fleeing injured one into death o noticed th locality. Th but acquitta the appella with Sectio submitted circumstanc prosecution intention to years with enmity or a the learned evidence, it boy was ab held that su the part of In Abdul Ise Suleman v. State of Gu In ted in 1995 CrLJ 464, it was the case o cution that the accused had fired freely tow leeing complainant party and the first shot ed one person whereas second shot had res death of ten year old son of the complainant. I ed that firing was resorted to in a comme ity. The Sessions Court had acquitted the acc cquittal appeal was allowed by the High Cour ppellant was convicted under Section 302 Section 301 and other provisions of the IPC. I itted before the facts mstances of the case and evidence led by cution did not establish that the appellant had tion to commit murder of an innocent boy age with whom there was no question of having ty or any occasion to take a revenge. Accordi earned Counsel of the appellant, even from nce, it was possible to hold that such death o as absolutely unintentional and at best it cou that such firing was a rash and negligent actio art of the appellant. It was argued by the lea Gujarat ase of the ly towards st shot had ad resulted nant. It was commercial he accused, h Court and n 302 read IPC. It was facts and led by the ant had any oy aged ten aving any ccording to n from the eath of the it could be nt action on the learned this Court that 1998 CRA No. 326 of 1998 Page 21 of 30 Counsel of appellant w Section 301 was an o Negativing gun was n complainan by the appe the first sho to this Cou where ther Section 301 and circum conviction Section 301 tted by the sel of the appellant that act committed by 2 read with llant was not murder under Section 302 read Court, but on 301 of the IPC as held by the High Cour f the IPC. an offence under Section 304A of the as held that tiving the said contention, this Court has held righten the was not fired in the air just to frighten n was fired lainant and his companions, but the gun was n when by e appellant towards fleeing person even whe . According rst shot one of such person was injured. Acco n a locality is Court, such firing was resorted to in a loc rovision of e there were number of shops and provisio in the facts on 301 of the IPC was clearly attracted in the y, the the case. Ultimately, circumstances of iction of the appellant under Section 302 read 2 read with ourt. on 301 of the IPC was upheld by this Court. In view of the principles laid down by this C In vi 42. ove quoted decisions, it is evident that even i in above qu for the sake of argument that the appellant ha held for the tion to cause death of the deceased, it will ha intention to eld transfer of malice that doctrine of t be held mplated under Section 301, is applicable to contemplat of the present case and that the appellant wou facts of the y under Section 302 of the IPC. guilty unde y this Court even if it is lant had no ill have to malice, as able to the nt would be 19. In view o iew of the above decision, to sum up th up the doctrinal position for applic application to the present appeal, Section 3 ction 301 ensures that an accused can sed cannot evade the legal consequences of a es of an intention or knowledge direc e directed at one person simply because anot se another person, by fortuitous circu s circumstance, becomes the victim; but S but Section 301 does not itself cre elf create culpability out of nothing; it op it operates only when the precurso ecursory mental element i.e. intention or know or knowledge of a kind that would ould make the act murder under Secti Section 300 is established. 20. How these these principles operate in the context of S xt of Section 301 is plain in principl rinciple, apropos, where the accused, with a with an intention to kill or with kno ith knowledge that his act was likely to cau to cause death in 1998 CRA No. 326 of 1998 Page 22 of 30 the sense used in ed in Section 300, directs his act towards A rds A but the act results in the death death of B, the mens rea being the moving f oving force of the offence is transfer ransferred to B and the offence retains the ins the quality it would have had if had if A had died. Thus, the court’s exercise ercise is a single, integrated inquiry quiry into (i) the mental element of the acc he accused at the time of the act (di act (did he intend death or know the act to b act to be likely to cause death?), and ?), and (ii) the physical act and its consequ nsequences (was death caused and d and to whom?). If the answer to (i) (i) satisfies the criteria of Section ection 300, the conclusion under Section 3 ction 301 will be that the offender is nder is guilty of murder just as he would hav ld have been had the intended victim victim died. Conversely, if the mens rea es rea established is of a lesser grade, grade, for example negligence, rashness or ess or a lack of knowledge that the that the act was likely to cause death, then S then Section 301 cannot be invoked voked to upgrade the offence to murder. Th er. The evidence must, therefore, be scrutinised to determine not only t only who was killed, but what th hat the accused intended or knew at the mo he moment he set he act. his hand to the act. 21. We find it find it pertinent to clarify here the distinctio stinction between an accidental death l death and a death caused by transfer of m r of malice under Section 301 IPC IPC is of considerable significance. In ce. In cases of accidental death, th ath, the act of the accused lacks the essentia ssential mens rea, as in there is no in s no intention to cause death, nor knowledge wledge that death is a likely consequ onsequence. The fatality occurs as an uninte unintended result of negligence, ras ce, rashness, or sheer chance, and liability ability, if any, is confined to the les the lesser offence of causing death by neglig negligence under Section 304A IPC. A IPC. From the perspective of the victim, an tim, an accidental death is one which which occurs without the intervention of i n of intention or 1998 CRA No. 326 of 1998 Page 23 of 30 method. In such a such a case, the victim is simply at the wro e wrong place at the wrong time, an me, and the fatality is the result of negligenc ligence, rashness, or an unforeseen eseen mishap. Such deaths are generally r rally regarded as “accidental” in la in law and most commonly arise in the in the context of insurance claims, laims, motor vehicle compensation proce proceedings, or statutory reliefs, w liefs, where the focus is on compensation ation rather than criminal culpabilit pability. In contrast ontrast, death by transfer of malice under S nder Section 301 IPC is conceptual eptually distinct. Here, the act is committe mmitted with the requisite homicida micidal mens rea, an intention to cause d ause death, or to cause such bodily bodily injury as is sufficient in the ordinary rdinary course of nature to cause dea use death, or at the very least, knowledge tha ge that death is a likely consequence quence. If, by fortuitous circumstance, the ac , the actual victim turns out to be so be someone other than the intended targ d target, the law “transfers” the culp he culpability to the person killed, treating th ting the homicide as if it were com e committed against the intended victim. T tim. Thus, while accidental death is eath is marked by the absence of mens rea an rea and is largely addressed in comp compensatory regimes, death by transfer o nsfer of malice is rooted in intentio intention or knowledge and carries the the full penal consequences of s of murder under Section 302 IPC IPC where the requirements of Se s of Section 300 are satisfied. 22. Coming to ing to the culpability of the Appellant in nt in the present case, the central entral issue is whether his conduct falls falls within the definition of “mur “murder” as set out in Section 300 of the In f the Indian Penal Code. On a carefu careful scrutiny of the materials, we are pe are persuaded to hold that the act of of the Appellant is squarely covered und ed under the third clause of Section ction 300 i.e. 3rdly. The clause provides th ides that culpable 1998 CRA No. 326 of 1998 Page 24 of 30 homicide is murde murder if it is done with the intention of cau f causing bodily injury to any perso erson, and the bodily injury intended to be to be inflicted is sufficient in the o the ordinary course of nature to cause use death. The emphasis here is o re is on the intention to cause a particular bo ular bodily injury coupled with the h the sufficiency of that injury to cause d use death in the rse of nature. ordinary course of 23. In the pres e present case, it is established by cogent ev ent evidence that the Appellant, foll t, following a quarrel with P.W.15 whom he hom he suspected of having an illicit illicit relationship with his wife (P.W.11) threatened to crush him under under the wheels of his truck. About te out ten minutes thereafter, he retu e returned, driving the truck at a very h very high speed, swerved it towards wards the group of people standing in front front of the shop of P.W.1, and in th d in the process, ran over four individuals, ca uals, causing their instantaneous dea s death. The evidence of P.W.15, suppor orted by the hostile but partial a artial admissions of other witnesses, establis stablishes that the act was not an a t an accident but a deliberate manoeuvre oeuvre aimed at inflicting bodily h dily harm of the most grievous kind, name , namely running heavy vehicle whe le wheels over human bodies. It requires no res no elaboration to state that such t such an act, by its very nature, is suffic sufficient in the ordinary course to urse to cause death. Thus, the requirement rement of Clause 3rdly is satisfied th sfied that the Appellant intended the bodily a odily act, and the bodily injury cause caused was such as would inevitably lead to lead to death. Learned co ned counsel for the Appellant, Mr. Panda, anda, had argued that even if the Ap the Appellant harboured animosity towards P ards P.W.15, the death of the other other four persons was unintended, and at b d at best the case would fall under under Section 301 IPC, making the offen offence one of culpable homicide micide not amounting to murder. He emph emphasised that P.W.15 himself d self did not sustain any serious injury an ury and that the 1998 CRA No. 326 of 1998 Page 25 of 30 hostile witnesses d esses did not attribute rash or intentional con al conduct to the Appellant. On the n the other hand, learned counsel for the or the State, Mr. Mohanty, contend ntended that the act of the Appellant clearly clearly reveals an intention to cause cause bodily injury of such severity that d that death was a certain consequenc equence. He highlighted that the accused had ed had threatened P.W.15 in precisi precision with the mode of assault verbat erbatim and had thereafter executed ecuted the said threat by driving the vehic vehicle into the crowd. According ording to him, the absence of injury on ry on P.W.15 is inconsequential, fo tial, for Section 301 ensures that the liability ability for murder is transferred to th d to the actual victims, and once the mental mental element is shown, the identity dentity of the person killed is immaterial. 24. Having co ing considered the rival submissions, and , and the proper application of the of the relevant provisions, we are unable to ble to accept the contention of the f the defence that the offence stands reduc uced to mere culpable homicide icide not amounting to murder. The Appell Appellant’s act of driving a heavy tru avy truck at high speed directly into a group a group of people after having issue issued a threat to crush P.W.15 under under its wheels evinces an unmis unmistakable intention to cause such bod bodily injuries sufficient in the or the ordinary course of nature to cause deat e death. That the intended victim es tim escaped is of no avail to the Appellant, ellant, for Section 301 makes him eq him equally culpable for the deaths of the f the others who actually sustained ained the injuries. Therefore, the Appellant’s llant’s conduct is covered within Cl hin Clause 3rdly of Section 300, and the off the offence made out against him is im is murder punishable under Section 302 I n 302 IPC. 25. With rega regard to the conviction of the Appel Appellant under Section 307 IPC, l IPC, learned counsel for the Appellant, argu t, argued that the essential ingredien redient of an “attempt to murder” is absent absent, inasmuch 1998 CRA No. 326 of 1998 Page 26 of 30 as P.W.15, the a the alleged target, escaped without sust t sustaining any serious injury, and ry, and none of the injured witnesses attri s attributed their injuries to an atte n attempt directed against him. It was also s also contended that there is no me no medical evidence to support the claim t laim that P.W.15 suffered any hurt. hurt. On the other hand, learned counsel fo nsel for the State contended that the hat the act of the Appellant in driving a hea a heavy vehicle directly into a gro a group of persons after threatening to cru to crush P.W.15 under its wheels heels constitutes a clear attempt on his lif his life, and the survival of the in the intended victim cannot absolve the A the Appellant of liability under Sec er Section 307. The law un law under Section 307 IPC is well settled, th , that it is not the injury, but the ut the intention or knowledge coupled with th with the overt act which determines mines liability under the circumstances o ces of the case. Once the accused, cused, armed with the requisite mens rea, dir ea, directs his act towards the victim victim in a manner sufficient to cause death, death, the attempt is complete regar regardless of whether the intended victim victim survives unhurt. Herein, th , the prior threat, the deliberate act of ct of driving the truck into the cro he crowd where P.W.15 was standing, an ng, and the fatal injuries caused to sed to others while executing that modus modus, leave no doubt that there w here was an attempt to cause the death of P h of P.W.15. The absence of medic medical corroboration of injury on him n him is of no consequence. Mo Moreover, P.W.8 is an injured witn witnesses who implicated the Ap Appellant driving a mini truck from Sali m Salipur side in breakneck speed, peed, not only crushed the deceased person persons under the wheels of the truc e truck but also caused injuries to him and and others. The doctor (P.W.17) .17) treated P.W.8 in the Accident Unit t Unit, Dept. of Orothopaedic of S ic of SCBMCH, Cuttack where he was a s admitted on 1998 CRA No. 326 of 1998 Page 27 of 30 30.03.1995 and d and discharged on 02.05.1995 as per the er the Bed Head ticket (Ext.10). 10). We, therefore hold that the convict onviction of the Appellant under Se der Section 307 IPC is legally tenable. 26. Furthermo hermore, Mr. Panda argued that this ci his circumstance seriously undermin rmines the prosecution case, as the hostil hostile witnesses did not attribute ibute any overt act to the Appellant or s t or support the presence of P.W. P.W.15 at the scene. Mr. Mohanty, for y, for the State, however, argued t gued that hostile testimony does not efface efface itself from the record and tha nd that the Court is entitled to rely upon su pon such parts of the testimony as fi y as find corroboration in other reliable evide e evidence. It is appa apparent that a number of eyewitnesses nesses, including P.Ws.2, 3, 4, 6, 4, 6, 8, 9, and 10, were declared hostile. ostile. However, among the hostile ile witnesses, there are consistent admis admissions as to the presence of the of the Mini Truck at the spot, the deaths ca aths caused by its running over the r the victims, and the presence of the accu e accused at the scene. These admi admissions, coupled with the testimony of P ny of P.W.15, the medical evidence dence and the evidence of MVI, provide rovide sufficient corroboration to su n to sustain the prosecution case. Therefore, refore, the hostile nature of certain ertain witnesses does not detract from t from the overall reliability of the pr the prosecution evidence. 27. As regard regards the argument advanced on beh n behalf of the Appellant that mec at mechanical failure of the vehicle could n ould not be ruled out. The learned arned counsel for the Appellant argued t gued that in the absence of seizu seizure of tyre marks or conclusive sive mechanical inspection, the pro he prosecution case of intentional homicida icidal use of the btful. truck is doubtful. 1998 CRA No. 326 of 1998 Page 28 of 30 Herein, the he mere suggestion that mechanical fai cal failure “could not be ruled out” d out” does not, by itself, displace the positiv positive evidence of deliberate condu conduct, particularly in light of the eyewitn ewitness account and the preceding ceding threat issued by the Appellant. The . The defence of mechanical failure failur is speculative, unsupported by ed by material evidence, and stan d stands contradicted by the circumstances tances and ocular testimony. P.W.18 .W.18, the M.V.I. has specifically stated tha ted that there was no mechanical fai cal failure to the vehicle contributing to th to the accident. The brake system system of the vehicle was intact at th at the time of examination. The . The bulbs of the Head lights of the ve the vehicle were damaged due to e to collusion. The hand brake and steer steering of the vehicle were in o e in order. Thus, the failure to apply bra ly brakes by the Appellant, who w ho was a driver by profession and drivin driving the truck towards the extrem extreme left of the road to the betel shop of hop of P.W.1 and crushing so many p many persons under the wheels speaks a volu a volume against his conduct, intent intention and knowledge. 28. In view iew of the foregoing discussion, we a we are of the considered opinio opinion that the conviction of the Appel Appellant under Section 302 IPC i IPC is well-founded, as his act falls squa s squarely within Clause 3rdly of Se of Section 300 IPC and stands further attra r attracted by the operation of Sectio Section 301 IPC. The deaths of the four vi four victims were the direct result result of the deliberate and intentional ional act of the Appellant, and th nd the finding of guilt recorded by the le the learned trial court under Sectio Section 302 IPC warrants no interference. We also f also find that the conviction of the Appe Appellant under Section 307 IPC i IPC is legally sustainable, inasmuch as his as his overt act, preceded by a cle a clear threat to P.W.15, constituted an ed an attempt to 1998 CRA No. 326 of 1998 Page 29 of 30 cause his death, t eath, though the intended-victim escaped aped which also caused injuries to ries to P.W.8 for which he was treated as ted as an indoor patient for more t ore than a month. However, since the Ap he Appellant has already been sent n sentenced to undergo imprisonment for nt for life under Section 302 IPC, IPC, no separate sentence under Section ction 307 IPC is called for and the d the same has been rightly not imposed by ed by the learned trial court. 29. As a resul result, the conviction and sentence of the e learned 2nd Additional Sessions Judge, Cut passed by the learn of the Appellant e, Cuttack in S.T. Case No.78 of 19 of 1996 vide judgment and order dated dated 25.11.1998 under Section 30 on 302 IPC are hereby confirmed, along along with the conviction under S nder Section 307 IPC, without separate sente e sentence. 30. The Appel Appellant, being on bail, is directed to surre surrender before the learned trial co rial court within a period of four weeks, to se to serve out the remainder of his se f his sentence, failing which the learned trial d trial court shall take necessary step ry steps to secure his custody in accordance w dance with law. According ordingly, the Appeal is hereby dismissed. (Chittaranjan Da n Dash) Judge I, Agree Judge oo) (S. K. Sahoo) Bijay Signature Not Verified Digitally Signed Signed by: BIJAY KETAN SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 26-Sep-2025 15:21:57 1998 CRA No. 326 of 1998 Page 30 of 30
Arguments
in respect to the injured Sridhar Behura, P.W ra, P.W.18 is the MVI, P.W.19 is a 9 is a contractor and an occurrence witness tness and P.W.20 is the I.O. 5. The learne learned trial court, having assessed the evid evidence found the Appellant to h nt to have driven the vehicle in a rash and sh and negligent manner intentional ntionally to crush over the persons present in sent in the market while targeting to ing to do away with the life of P.W.15, ba .15, based on the evidence of the ey the eye witness account as well as the cir he circumstances appearing in the re the relevant time. The court also held the d d the death of the deceased to be hom be homicidal in nature. 6. In course ourse of hearing, Mr. Devashis Panda, learn , learned counsel for the Appellant, ellant, assailed the impugned judgment and nt and order and submitted that the at the evidence of P.W.15 assumes great im eat importance in this case, as the A the Appellant allegedly bore ill feeling towa g towards him on suspicion of havin having an illicit relationship with his wife is wife (P.W.11), who had been st een staying at her parental house for abo or about a year. According to Mr to Mr. Panda, the testimony of P.W.15 .W.15 is wholly unreliable, inasmu nasmuch as it finds no corroboration from from any other witness, including luding the injured witnesses, who were alleg e allegedly taken by him to the hosp e hospital. P.W.11, the estranged wife of the of the Appellant, admitted that P.W at P.W.15 was her agnatic uncle and wa was casually 1998 CRA No. 326 of 1998 Page 4 of 30 visiting her parent parents’ place. However, the Appellant had t had objected to his presence. It wa . It was argued that the alleged motive for c e for commission of the crime, nam e, namely the supposed amorous relationsh nship between P.W.11 and P.W.1 P.W.15, has not been proved, as no othe other witnesses including P.Ws.8, .Ws.8, 9, and 10 supported the claim of im of a quarrel between the Appel ident. Appellant and P.W.15 prior to the incident. Mr. Panda Panda further submitted that although P.W. P.W.15 claimed to have received i ived injuries, but this was not corroborated orated by any of the occurrence w nce witnesses, nor has any medical evid l evidence been adduced to prove t rove the same. None of the eyewitnesses pr ses present at the scene stated that that P.W.15 sustained any injury or att or attributed the Appellant as the d s the driver of the offending vehicle. Thus, Thus, neither the alleged motive nor ive nor the version of P.W.15 can be safely r afely relied upon. It was argued th ued that the evidence on record indicate dicates that the Appellant had no ad no intention to cause the death of th of the deceased persons, who succ o succumbed to the injuries sustained after b after being hit by the Mini Truck. Th ck. Therefore, the charge under Section 302 on 302 IPC is not sustainable. Instea Instead, the Appellant ought to have bee ve been charged under Section 301 n 301 IPC, which provides for punishment ment of culpable homicide when d hen death is caused to a person other th her than the one intended. Assailing t iling the conviction, Mr. Panda further argu argued that the injured witnesses n esses never attributed the accident to the Ap the Appellant. He pointed out that that no tyre marks were seized from th om the spot for comparison with t with the tyres of the Mini Truck, which wa ich was allegedly used in the crime. crime. He relied upon the decision in Varun arun Choudhry vs. State of Rajas ajasthan, reported in (2011) 12 SCC 545 545, wherein it 1998 CRA No. 326 of 1998 Page 5 of 30 was held that un at unless tyre marks are seized from t om the spot and compared with tho ith those of the vehicle, it cannot be conclu conclusively held that the recovered vered vehicle was used for commission of t on of the offence. In the present cas nt case, no such comparison was made, an de, and therefore the use of the Min e Mini Truck by the Appellant is not estab t established. Mr. Panda also submit submitted that had P.W.15 really been the ta the target of the Appellant, he wo he would have at least suffered some in me injuries. The absence of any in any injury on his person renders his version version unnatural and untrustworthy orthy. His conduct in neither reporting th ting the incident immediately to th to the police, nor undergoing medical ex ical examination, and remaining un ing untraceable on 03.04.1995, further ca her casts serious doubt on his testim testimony. Placing re ing reliance on the cross-examination of ion of the MVI (P.W.18), who adm ho admitted that mechanical failure of the ve the vehicle could not be ruled out, M out, Mr. Panda contended that the prosecu rosecution case is further weakened. kened. He argued that the evidence makes akes it apparent that the Appellant ellant had no intention to cause the death death of the four ersons deceased persons i.e. Rajib Narayan Dash, Alek Alekha Samal, Hrushikesh Rout, Rout, and Golakha Chandra Nayak. At k. At best, the prosecution case i case is that the Appellant intended to targ to target P.W.15, which, even if ac if accepted, would attract Section 301 IP 301 IPC and not IPC. Section 302 IPC. As regards egards the conviction under Section 307 IPC, 7 IPC, Mr. Panda submitted that it at it was based on the alleged injuries su ries sustained by Rabindranath Sa h Sahu (P.W.8), Sridhar Behera (P.W.9), and (P.W Dharinidhar Sahu Sahu (P.W.10), as well as P.W.15 who 5 who allegedly managed to escape escape. However, P.W.8, though testifying ifying that he had 1998 CRA No. 326 of 1998 Page 6 of 30 sustained injuries juries on his head and ear and was admitt admitted to SCB Medical College & llege & Hospital, did not speak of P.W.15’ W.15’s presence. P.W.9 stated that that he sustained a fracture in his right le ight leg and was admitted in the sam the same hospital, but again did not speak o peak of P.W.15’s presence. Both w oth witnesses were declared hostile. T tile. The doctor (P.W.17) proved t oved the admission of P.Ws.8 and 9, but th but the injury of P.W.9 was limited imited to pain over his right knee. No injury injury report was ever proved for P.W for P.W.15. According rding to Mr. Panda, the absence of co of corroboration regarding the prese e presence of injury of P.W.15, coupled with d with the failure to collect tyre mar re marks from the spot, establishes that P.W. t P.W.15 is a got- up witness and h and his testimony is unreliable and as as such infirm evidence, the conv e conviction of the Appellant cannot stand. T tand. Therefore, it was submitted that ed that the impugned judgment of the learned learned trial court is based on no e no evidence and is liable to be set asid et aside, and the Appellant is entitle entitled to an acquittal. 7. Mr. Aurov Aurovinda Mohanty, learned counsel for th for the State, on the other hand, hand, submitted that the prosecution h tion has clearly established that th that the Appellant was driving the offendi ffending vehicle, i.e., the Mini Truc i Truck bearing Registration No. OR-05C- -1646, which crushed four perso r persons to death and caused injuries to four to four others. He relied upon the t the testimony of P.Ws.3, 4, 6, 8, and and 15, which, according to him o him, unequivocally prove the presen presence of the Appellant at the w t the wheel. He contended that P.W.15 is a 5 is a natural and trustworthy witne witness whose presence at Pira Bazar w azar was neither doubtful nor une r unexpected. The statement of P.W.15 P.W.15, both in examination-in-ch chief and in cross-examination, su n, substantially 1998 CRA No. 326 of 1998 Page 7 of 30 corroborates his pr his presence at the scene and his account of unt of the quarrel with the Appellan pellant. His testimony establishes that the at the Appellant, being enraged duri ed during the quarrel, threatened to crush him sh him under the wheels of the truc e truck, left the place, and soon returned t rned to drive the vehicle at great s reat speed towards the footpath where P here P.W.15 and others were standin standing. This version, according to Mr. Mo r. Mohanty, goes uncontroverted an ted and directly implicates the Appellant as lant as the driver of the vehicle and le and the author of the crime. It was furt as further argued that all the eyewitnesses nesses, including P.Ws.2, 3, 4, 5, 6 4, 5, 6, 8, 9, and 15, have consistently de y described the manner and seque sequence of the occurrence and specifically ifically identified the Appellant as th t as the driver who drove the vehicle into th into the footpath, resulting in multip multiple deaths and injuries. The prosecut osecution case is further reinforced orced by the evidence of P.W.18, the Mot e Motor Vehicle Inspector, who cat ho categorically deposed that the offending nding vehicle had no mechanical def cal defect and was in good running conditi ondition, thereby ruling out the pos he possibility of accidental failure. Accord ccording to Mr. Mohanty, this pro is proves beyond doubt that the Appellant pellant drove the truck with the requ he requisite intention to cause the death of P th of P.W.15, and in the process ca ess caused the death of four persons and s and injuries to others. Finally, M , Mr. Mohanty contended that the testimo estimonies of the eyewitnesses are s are cogent, reliable, and consistent with with each other and with the medic medical and scientific evidence. The cumul cumulative effect of the evidence ence leads to the inescapable conclusio clusion that the Appellant acted w cted with full knowledge and intention, m ion, making him liable for the offen e offence of murder. The learned trial court l court, therefore, 1998 CRA No. 326 of 1998 Page 8 of 30 rightly held him him guilty, and no interference with the th the impugned judgment is warran warranted. 8. Having hea ing heard the learned counsel for both the Pa the Parties, at the outset, it is necess necessary to examine the medical evidence dence in order to ascertain the caus e cause of death of the deceased and the nd the nature of injuries sustained ained by the injured witnesses. From the te the testimony of P.W.13, Dr. Minat Minati Patnaik, it stands established that fo that four persons, namely Rajib Nara b Narayan Dash, Alekha Samal, Hrushikes hikesh Rout, and Golakha Chandra andra Nayak, died on account of injuries su ries sustained by them, which were were opined to be ante-mortem in nature ature and caused by hard and blunt blunt force impact. The doctor further opine r opined that such injuries were fatal e fatal in the ordinary course of nature and co and could jointly and severally be ly be occasioned in a case of dashing by ng by a running vehicle. In so far as far as the injured witnesses are concerned, P rned, P.W.20, the Investigating Off g Officer, issued requisition for their medical thei examination and o and obtained the bed-head tickets of P.W.8 P.W.8 and P.W.9. P.W.17, the Ass e Assistant Surgeon in the Accident U ent Unit of the Orthopaedics Depa s Department, SCB Medical College, Cuttac Cuttack, deposed that on 30.03.1995 3.1995, P.W.8 was admitted with complaint plaints of pain in both knees and the nd the left elbow. He proved the bed-head t head ticket under Ext.10, showing th ing that P.W.8 remained under treatment a ent as an indoor patient from 30.03 30.03.1995 to 07.04.1995. Consequen sequently, it is significant to note that the d t the defence has not disputed either either the nature of the injuries sustained by ed by the injured witnesses (except xcept in relation to P.W.15) or the death death of the four deceased persons n rsons named above. In view of such admitte dmitted position, 1998 CRA No. 326 of 1998 Page 9 of 30 we consider it un it unnecessary to burden this judgment w ent with further elaboration on thi on this aspect, as the fact of homicidal d dal death and the injuries sustained stained by the injured stand establishe ablished beyond controversy. 9. The entire entire prosecution case rests substantial tantially on the account of the eye he eyewitnesses. The prosecution examined mined P.Ws.2, 3, 4, 6, 7, 8, 9, 10, an 10, and P.W.15 as occurrence witnesses. Ho es. However, it is pertinent to note t note that P.Ws.2, 3, 4, 6, 8, 9, and 10 did 0 did not support the prosecution c tion case in material particulars and wer d were declared hostile, thereby reby necessitating their cross-examinatio ination by the prosecution. 10. In this backdrop, this b the primary issue that arises for that consideration befo n before this Court is whether the death of th th of the deceased persons was the s the result of an intentional act on the p the part of the Appellant, done w one with the intention of causing death or ath or of causing such bodily injury injury as the Appellant knew to be likel e likely to cause death, or whethe hether the incident was the result of lt of any other circumstance short e short of such intention. 11. In order to rder to appreciate the rival contentions and s and to examine whether the prose prosecution has succeeded in proving its c g its case beyond reasonable doubt, oubt, it becomes necessary to advert to the e o the evidence of the material witnes witnesses, as follows – P.W.2 dep deposed that he knew the deceased person persons, namely, Alekha Samal, Ra al, Rajib Das, Hrushikesh Rout, and Golak Golakha Nayak, but he did not kno ot know either the injured Kalia @ Sukanta P kanta Patra or the Appellant. He sta e stated that the occurrence took place m lace more than a year back at Jagat t Jagatpur Peer Bazar. His house being situa g situated at Peer 1998 CRA No. 326 of 1998 Page 10 of 30 Bazar, on hearing earing commotion, he came to the road and d and found four dead bodies lying lying there, having been crushed by a v y a vehicle. He, however, expresse pressed no knowledge about how the in the incident had occurred. Consequ onsequently, the witness was declared hos ed hostile by the learned Public Pro lic Prosecutor. He denied all suggestions pu ons put to him in relation to the circu e circumstances of the case. P.W.3, a c , a co-villager, stated that he knew the the Appellant as the driver of the f the Mini Truck bearing Registration No on No. OR-05C- 1646. He also kne so knew the deceased persons, namely Ale ly Alekha Samal, Rajib Das, Hrushik rushikesh Rout, and Golakha Nayak, but di but did not know the injured Kalia @ alia @ Sukanta Patra. He deposed that the in t the incident had occurred more tha re than a year ago. In the evening, the Appe Appellant came driving the aforesa aforesaid Mini Truck from the Salipur side, side, swerved to the side of the ro the road in front of the shop of P.W.1, .W.1, where the aforesaid four dec ur deceased persons and others were standin standing, and ran over them under under its wheels. As a result, the deceas deceased persons succumbed to the to their injuries and three more persons ersons sustained injuries in the inci e incident. The deceased and the injured we red were taken to SCB Medical Coll al College & Hospital, Cuttack. Thereafter, after, the witness was declared host d hostile by the learned Public Prosecutor cutor and denied the suggestions pu ons put to him with regard to the circumsta umstances of the case. P.W.4 stat stated that he knew the Appellant but d but did not know his wife, Kuni. He ni. He knew the deceased persons, though hough he did not know the injured K jured Kalia @ Sukanta Patra. He runs a gar a garage at Peer Bazar and explain xplained the occurrence in the same manner anner as P.Ws.2 and 3, namely tha ly that the deceased and the injured were e standing in 1998 CRA No. 326 of 1998 Page 11 of 30 front of the shop o shop of P.W.1 when the incident occurred. urred. They were later taken to SCB o SCB Medical College & Hospital, Cuttack uttack. He added that he could not d not say whether Kalia @ Sukanta Patra w Patra was present there, as he did not did not know him. P.W.6 stat stated that he knew the Appellant, P.W.1 P.W.11-Kuni, the deceased persons, rsons, and the injured P.W.15. He further urther stated that there were differen ifferences between the Appellant and his wi his wife Kuni, as a result of which which she had gone to reside at her parent parental home in Gopinathpur. On t r. On the date of the occurrence, he was at as at the shop of P.W.1 when the in the incident took place. He described the oc the occurrence in the same manner anner as P.Ws.2 and 3, stating that the de the deceased and others were stand standing in front of the shop of P.W.1. .W.1. He further deposed that he had caught hold of the Appellant. The . Thereafter, he was declared hosti hostile by the learned Public Prosecutor. P.W.7 stat stated that he knew the Appellant, who h who had married Kuni, the daughter ughter of Mani Behera of their village. He d . He deposed that Kuni was residing esiding in her parental home due to straine strained relations with the Appellan pellant. He did not know Kalia @ Sukanta ukanta Patra. He further stated that d that the occurrence took place more than a than a year ago at Pira Bazar in fron n front of the shop of P.W.1. At the releva relevant time, he was at his house a ouse and came to the spot on hearing comm g commotion. On arrival, he found f ound four persons crushed under a vehicle ehicle in front of the shop of P.W.1 P.W.1. The vehicle was parked in a nearby f earby field on the right side of the r f the road, and the Appellant had been caug n caught hold of and detained by d by local people. He also witnessed essed the police conducting inques inquest over the dead bodies of the deceas deceased, namely Alekha Samal, Ra al, Rajib Narayan Das, Hrushikesh Rout, an out, and Golakha 1998 CRA No. 326 of 1998 Page 12 of 30 Nayak at SCB Me B Medical College & Hospital, Cuttack. H ack. However, he clarified that he d t he did not witness the inquest over the er the bodies of Alekha Samal and al and Rajib Narayan Das. P.W.8, a c , a co-villager, deposed that the incident ident occurred at about 7.30 p.m. on .m. on 30.03.1995 at Pira Bazar in front of ont of the shop of P.W.1. At that tim hat time, the deceased persons, namely Ale ly Alekha Samal, Rajib Narayan Da an Das, Hrushikesh Rout, and Golakha N kha Nayak, were standing near the ar the said shop, while P.W.8 was selling elling vegetables nearby. The App Appellant came driving the Mini Truck Truck from the Salipur side at a b at a break-neck speed, ploughed it into the to the group, and crushed them unde under its wheels. In the process, P.W.8 and .8 and two others also sustained inju ed injuries. P.W.8 suffered a fracture in bo in both legs, his left hand, and inju d injuries on the left side of the head near near the ear, for which he was ad as admitted to SCB Medical College & ege & Hospital, Cuttack. Thereafte ereafter, the witness was declared hostile by ile by the learned Public Prosecutor. cutor. In cross-examination, however, he c he confirmed the registration numbe number of the Mini Truck driven by the App Appellant. P.W.9 dep deposed that he knew the Appellant, his , his wife Kuni, and P.W.15. He st . He stated that the Appellant had disturbanc urbances with his wife, owing to wh to which she was residing at her parental ho tal house. On the date of occurrence urrence, P.W.9 had gone to Pira Bazar for ar for marketing, when the Appellan ppellant came driving the Mini Truck from from the Salipur side at a break-ne neck speed, ran it over the aforesaid pe said persons, and crushed them unde under its wheels. While the deceased perso persons died on the spot, P.W.9, a .9, along with P.W.8, sustained injuries. H ries. He suffered injury to his right s right leg and was taken to SCB Medical edical College & Hospital, Cuttack f ttack for treatment. 1998 CRA No. 326 of 1998 Page 13 of 30 P.W.10, a , an injured witness, stated that he at he knew the Appellant and his nd his wife, P.W.11. He corroborated the e the evidence of P.Ws.8 and 9 and 9 and further stated that he had sustained in ined injury on his right leg in the o the occurrence. He too was declared hos d hostile by the learned Public Pro lic Prosecutor. P.W.15 is is an eyewitness, whom the Appellant ellant accused of having an illicit re licit relationship with his wife. He is the ag the agnatic uncle of the Appellant’s llant’s wife. In his sworn testimony, P.W.15 .W.15 stated that on the date of oc of occurrence, he had gone to Pira Bazar, Bazar, where the Appellant arrived rrived in a truck bearing Registration No on No. OR-05C- 1646, parked it in d it in front of the shop of P.W.1, and star d started hurling abuses at him in ob m in obscene language while accusing him o him of having an illicit relationship nship with his wife. The Appellant then th hen threatened to kill him and drove drove away towards Salipur. About ten mi n minutes later, the Appellant retu nt returned, driving the truck at a break- -neck speed, while P.W.15 was 5 was conversing with the deceased Rajib D ajib Das in front of the shop of P.W of P.W.1. The Appellant drove the truck tow ck towards them, swerving to the e the extreme left of the road up to the be the betel shop of P.W.1, with the i the intention of crushing P.W.15 under under its wheels. P.W.15, however, ever, managed to jump aside and escaped caped with minor injury. In the pro e process, the truck struck and ran over over Rajib Das, Alekha Samal, G al, Golakha Nayak, and Hrushikesh esh Rout, who succumbed to the to their injuries. Rabindra Sahu and two two others also sustained injuries juries as the accused swerved the truck from k from the left to the right side of th e of the road before driving it into a nearby f arby field, where he stopped the ve the vehicle. P.W.15, along with others pre rs present at the spot, carried the d the injured persons to SCB Medical dical College & 1998 CRA No. 326 of 1998 Page 14 of 30 Hospital, Cuttack. uttack. He further stated that the Officer-in in-Charge of Jagatpur P.S. arriv . arrived at the spot by about 8:30 p.m., an .m., and that one Prakash Chandra B ndra Behera, who was present there, lodged lodged the FIR at Jagatpur P.S. 12. As rightly ightly argued by the learned counsel for the for the Appellant, the culpability of t ity of the accused in the present case may, at ay, at first blush, appear to be cover covered under Section 301 of the Indian P dian Penal Code, inasmuch as the in the intention of the Appellant, as alleged, w ged, was to cause the death of P.W.1 P.W.15, but the fatal consequence ensued in sued in respect of four other individ individuals. It is therefore necessary to ex to examine the scope and applicab pplicability of Section 301 IPC. For better ap etter appreciation, the provision is rep n is reproduced below: 301. Culpa other than person, by be likely to causing the intends nor culpable ho description caused the or knew him Culpable homicide by causing death of pe than person whose death was intended n, by doing anything which he intends or kno kely to cause death, commits culpable homicid ng the death of any person, whose death he ne ds nor knows himself to be likely to cause ble homicide committed by the offender is o iption of which it would have been if he d the death of the person whose death he inte ew himself to be likely to cause. of person ded.—If a or knows to omicide by h he neither cause, the er is of the if he had he intended 13. The questi question of culpability under Section 301 IP 301 IPC must be approached with c with care. Superficially identical facts ma ts may give rise either to culpable pable homicide not amounting to murder or der or to murder, depending on the n the state of mind of the accused at the re the relevant time and the precise ma ise manner in which the statutory tests are sa are satisfied. Section 30 ion 301 IPC deals with the situation in whic n which a person, by doing anything ything which he intends or knows to be like be likely to cause death, causes the d s the death of a person other than the one he ne he intended or 1998 CRA No. 326 of 1998 Page 15 of 30 knew himself to b lf to be likely to cause. The statutory object objective is clear that the identity of tity of the actual victim is not decisive of th e of the degree of the offender’s cu r’s culpability; rather, what is determina rminative is the quality of the men mens rea with which the act was done and ne and the natural consequences of th s of the act as known or intended by the acto he actor. In short, Section 301 operat operates to “transfer” the legal character of t ter of the offence; the culpable hom homicide produced by the offender is o r is of the same description as it w as it would have been had the intended victim victim died. The scope of Section 3 ction 301 is therefore limited and specific cific. It does not create a new or se or separate category of homicide, it simp t simply transfers the malice, as in w as in where an accused does an act with th with the requisite intention or know knowledge directed at one person but death t death ensues to another, the culpa culpability is to be assessed as if the inten intended person had been killed. T lled. This means that Section 301 does not es not operate to lessen the degree egree of the offence by reason of mistaken staken identity of the victim. If, by v f, by virtue of the accused’s intention or kno or knowledge, the act falls within the the definition of murder under Section 30 tion 300, then the fact that some othe e other person and not the intended person d rson dies will not convert the offenc offence into a lesser form of culpable hom le homicide, the offence remains m ains murder and punishable accordingly. Co ly. Conversely, if the mental elemen lement established is one that falls short of S rt of Section 300, the offender’s liab ’s liability will be measured by the nature ature of culpable homicide establish tablished. 14. This leads leads to the necessary probe of the distincti stinction between “culpable homicid omicide” and “murder” under the Penal Co al Code. Section 299 supplies the s s the statutory definition of culpable homi homicide, while Section 300 circum circumscribes those kinds of culpable homi e homicide which 1998 CRA No. 326 of 1998 Page 16 of 30 amount to murder urder typically by reference to the presence o sence of intention to cause death. F ath. For better appreciation, both the pro e provisions are reproduced below below – Culpable homicide.—Whoever causes deat 299. Culpa an act with the intention of causing death, or doing an ac tention of causing such bodily injury as is like the intentio death, or with the knowledge that he is like cause death such act to act to cause death, commits the offence of cul cide. homicide. s death by ath, or with is likely to is likely by of culpable ausing such ely to cause is caused, hereinafter the act by intention of in Murder.—Except If it is done with the intention of causing y injury as the offender knows to be likely to c eath of the person to whom the harm is ca the cases herein pted, culpable homicide is murder, if the a h the death is caused is done with the intenti ng death, or— 300. Mur excepted, c which the d causing dea 2ndly.—If bodily injur the death o or— 3rdly.—If i injury to an inflicted is cause death If the person committing the act knows tha 4thly.—If t minently dangerous that it must, in all probab so imminen death, or such bodily injury as is likely to c cause death , and commits such act without any excus death, and ring the risk of causing death or such inju incurring th said. aforesaid. If it is done with the intention of causing b y to any person and the bodily injury intended ted is sufficient in the ordinary course of natu death, or— sing bodily ended to be of nature to that it is probability, ly to cause excuse for h injury as 15. The statuto statutory language of Section 300 (of course course, read with the exceptions), th therefore, operates as the primary test fo test for whether a culpable-homicide micide-type act is to be treated as murder; urder; where that threshold is crosse crossed the resulting offence attracts the co the consequences of murder. The ju The jurisprudence emphasise that the limbs limbs of Section 300 must be rea be read with precision, for the differenc fference between culpable homicide micide and murder is not merely semantic antic but carries momentous differe quence. differences in substantive penal consequence 1998 CRA No. 326 of 1998 Page 17 of 30 16. A fulcral lcral issue in applying Sections 300 and and 301 is the correct understand rstanding and application of mens rea i.e. the i.e. the subjective mental element of ent of intention and knowledge. Indian cr ian criminal law treats “intention” a tion” and “knowledge” as distinct though rel gh related modes of culpability: inte : intention signifies a conscious purpose to ose to bring about a particular conse consequence, whereas knowledge connotes nnotes awareness that a particular re ular result is likely to follow from the act. e act. The courts have long recogni cognised that these are not just abstract cat act categories but factual inferences ences to be drawn from the totality of evid f evidence in the conduct of the acc the accused before, during and after the act he act, any overt threats or declarat clarations, the weapon or means availed an iled and its likely effect, the speed, peed, direction and targeting of the assault ssault, and other attendant circumst rcumstances. The doctrine of dolus eventua ntualis i.e. ‘the accused foreseein reseeing and reconciling himself to the to the probable consequence’ has ’ has been treated as subsumed within the in the concept of “knowledge” for t ” for the purposes of Section 300; where t here the accused appreciated that hi that his act was so imminently dangerous tha ous that it must in all probability caus ty cause death, the requisite knowledge for m e for murder may be inferred. 17. It is also also necessary to observe the effect o fect of statutory exceptions and r and recognised defences on the interpla terplay between Sections 300 and 3 0 and 301. The exceptions to Section 300, fo 300, for instance, sudden and grave grave provocation, acts done in good fa ood faith in the exercise of right right of private defence, or by consen onsent in some circumstances, ope es, operate to reduce what would otherwise erwise be murder to culpable homic homicide not amounting to murder. These These exceptions are factual defenc defences and, insofar as they are establish stablished on the 1998 CRA No. 326 of 1998 Page 18 of 30 materials, they ope ey operate irrespective of whether the actual actual victim was the intended target target or not; transfer of malice under Sectio Section 301 does not nullify an othe n otherwise available exception. That said, t said, the burden of proof for an exc an exception lies where the law prescribes, a ibes, and whether an exception appl n applies depends on the temporal sequenc quence of events and on whether th ther there was time for the passion to cool, cool, or whether the force used wa ed was proportionate and necessary. Hence Hence, a careful, fact-sensitive eval e evaluation of both mens rea and possible ssible exceptions is indispensable be able before any determination that an offenc offence amounts to murder under Se der Section 302 by reason of Section 301. 18. The Hon’b Hon’ble Apex Court, in the matter of Ashok shok Saxena vs. The State of Uttar ttarakhand etc., reported in 2025 LiveLaw eLaw (SC) 163, in this regard has f