The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.442 of 2012 (An appeal U/S. 374(2) of the Code of Criminal Procedure, 1973 against the judgment passed by Shri S.K.Paty, Addl. Sessions Judge, Kuchinda in S.T. Case No.82/18 of 2008 corresponding to G.R. Case No. 18 of 2008, arising out of Mahulpali PS Case No. 03 of 2008 of the Court of SDJM, Kuchinda) Santosh Mahabhara State of Orissa … -versus- … Appellant Respondent For Appellant : Mr.L.N. Patel, Advocate For Respondent: Mr.P.K. Mohanty, ASC. CORAM: HON’BLE MR. JUSTICE D. DASH HON’BLE MR. JUSTICE G. SATAPATHY DATE OF HEARING :24.01.2024 DATE OF JUDGMENT:29.02.2024 G. Satapathy, J. 1. The learned Addl. Sessions Judge, Kuchinda by the judgment dated 03.11.2009 passed in S.T. Case No.82/18 of 2008 convicted Santosh Mahabhara for offence U/S 302 of IPC and sentenced him to undergo Rigorous Imprisonment (R.I.) for life and to pay a fine of Rs.5,000/- in default whereof, to undergo R.I. for further six months. Being aggrieved with his conviction and CRLA No.442 of 2012 Page 1 of 15 sentence for commission of offence U/S 302 of IPC, the convict Santosh Mahabhara has preferred this appeal. 2. The prosecution case in precise is the convict- Santosh Mahabhara is the cousin of P.W.1-Bijaya Mahabhara and about seven days before 14.01.2008, P.W.1 had expressed dissatisfaction over partition of their homestead land before his elder parents Cheru Mahabhara and Janaki Mahabhara in presence of convict and his younger brother Jayakrushna Mahabhara, but they did not respond. On 14.01.2008 at about 5 P.M. in the evening while Cheru Mahabhara, Taru Mahabhara (father of P.W.1), convict-Santosh Mahabhara and Binod Sunani and Pramod Kusum of their street were warming
Legal Reasoning
by sitting in front of fire in the house of the convict, at that time, the convict told that had I been taken liquor on the day previous week, I would have killed you (informant) and thereafter, there was altercation between two sides relating to the partition dispute of their homestead land. When the informant and his father were returning back to their house, the convict threw a burnt CRLA No.442 of 2012 Page 2 of 15 brick which struck on the chest of the father of P.W.1 namely Taru Mahabhara(hereinafter referred to as the “deceased”) and he died. On this incident, P.W.1 lodged an F.I.R. before the I.I.C., Mahulpali P.S., P.W.13-Narendra Kumar Sarangi, who registered Mahulpali P.S. Case No. 03 of 2008 against the convict for commission of offence punishable U/S 302 of IPC and took up the investigation of the case. P.W.13 accordingly, conducted investigation and submitted charge sheet against the convict for commission of offences U/Ss.302/324/352 of the IPC under which cognizance was taken resulting in trial in the present case when the convict pleaded not guilty to the charge for commission of aforesaid offences. 3. In support of its case, the prosecution examined 14 witnesses, relied upon documents under Exts.1 to 15 and identified Material Objects MO-I to MO-V as against the oral evidence of two witnesses as DWs.1 and 2 including the convict himself as DW1 and one documentary evidence under Ext.A by the convict. Of the CRLA No.442 of 2012 Page 3 of 15 prosecution witnesses, P.W.1 is the informant, P.W.2, the sister-in-law of the informant and P.W.3, the mother of P.W.2 are projected as eye witnesses to the occurrence, P.W.4 is a witness to the inquest and seizure, P.Ws.5 and 14 are the doctors, P.Ws. 6 to 8 and 12 are post occurrence witnesses, P.W.9 is a witness to seizure whereas, P.Ws. 10 and 11 are Police personnel and lastly P.W.13 is the I.O. 4. The plea of the convict in the course of trial was one of complete denial and false implication. In addition, the convict had also taken a plea in his statement U/S 313 of Cr.P.C. that he was present in his house, but the informant group demanded homestead land, to which he replied that the homestead land has been properly partitioned as a result, they assaulted him and blood oozed out of his body and he informed the in-charge of Police Station about the incident. 5. After appreciating the evidence on record upon hearing the parties, the learned trial Court by the impugned judgment convicted the appellant for offence CRLA No.442 of 2012 Page 4 of 15 U/S 302 of IPC while acquitting him for the rest of the offences and accordingly, sentenced to the imprisonment indicated supra. 6.
Legal Reasoning
In the course of hearing of appeal, Mr. L.N. Patel, learned counsel for the appellant, while not disputing the act of the appellant resulting in death of the deceased, has submitted that considering the manner in which the incident had occurred and the role attributed to the appellant, the conviction of the appellant is required to be modified from one Under Section 302 of IPC to Section 304 Part-II of IPC. It is accordingly, submitted by the learned counsel for the appellant for alteration of conviction of the appellant and modification of sentence to the period already undergone for the offence U/S 302 of IPC. 7. On the other hand, Mr. P.K. Mohanty, learned Additional Standing Counsel, however, has strongly opposed the prayer of the appellant and he has inter-alia submitted that the act of the appellant being squarely covered within the definition of Section 300 clause CRLA No.442 of 2012 Page 5 of 15 fourthly and thereby, the conviction of the appellant being recorded on sound principle of law needs no interference. Mr. Mohanty, has accordingly prayed to dismiss the appeal. 8. After having considered the rival submission upon perusal of evidence on record together with the impugned judgment of conviction, the only question now emerges for consideration is whether the conviction of the appellant can be altered or modified to one U/S 304 Part-II of IPC and thereby, the convict is entitled for reduction in the sentence. Since the only argument addressed before this Court is for alteration of the conviction of the appellant, it thereby, appears to the Court that the convict does not seriously challenge the homicidal death of the deceased, which is apparent from the evidence of P.W.5-Dr. Sradhakar Gartia, who in his evidence has clarified that the cause of death of the deceased was due to shock and haemorrhage on account of rupture of heart and liver. P.W.5 has also answered affirmatively to the query of the I.O. as to the possibility CRLA No.442 of 2012 Page 6 of 15 of rupture of heart and liver by strike of stone and brick, but it is also admitted by P.W.5 in cross-examination that the injury as per postmortem report can be possible by fall and he has not mentioned in his report whether the injuries were postmortem or ante-mortem in nature and he has not given any opinion as to whether the death was homicidal. 9. One of the essential ingredients of the offence of murder as contemplated U/S 300 of the IPC is the intention to cause death of such person, but intention can never be precisely established by way of direct evidence as a fact and it can only be deduced or inferred or gathered from the circumstance of facts which are proved. It is, therefore, clear that intention of a person can be gathered from the evidence, but it cannot be proved like any other fact by way of direct evidence. The circumstance from which intention to cause death can be gathered from a combination of a few or several circumstances as laid down in Pulicherla Nagaraju Vrs. State of AP; (2006) 11 SCC 444, wherein the Apex CRLA No.442 of 2012 Page 7 of 15 Court has enumerated the following circumstances relevant to consider whether there was any intention to cause death on the part of the accused; viz. (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of post employed in causing injury; (v) whether the act was in the course of a sudden quarrel or sudden fight or free from all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause of such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injuries had taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. It is also held in Pulicherla(supra) that the above list of circumstances is, of course, not exhaustive and there may be several CRLA No.442 of 2012 Page 8 of 15 other special circumstances with reference to individual cases which may throw light on the question of intention. In addition, the seat (place) of injury/injuries on the person and the nature of injuries inflicted are also the circumstances required to be addressed while dealing the intention of the offender. 10. On the other hand, culpable homicide is not murder, if it falls within the four exceptions as provided U/S 300 of the IPC, but the punishment provided for culpable homicide not amounting to murder has been contemplated U/S 304 of the IPC. The second limb of Section 304 of the IPC i.e. Part-II, prescribes punishment for the act done with the knowledge, but without any intention to cause death or to cause such bodily injury as is likely to cause death. Keeping in view the aforesaid principle and provisions of law, let us scrutinize the evidence on record. It is not in dispute that the informant is the cousin of the convict and the deceased-Taru Mahabhara, who was the father of the informant, was the uncle of the convict being the brother of his father and CRLA No.442 of 2012 Page 9 of 15 the evidence on record suggests that there was land dispute between the parties relating to the partition of homestead land. It is also not in dispute that there was an altercation between the informant and the convict just one week prior to the incident and on the day of incident, there was a tussle between the informant and the convict and during tussle, the convict had bitten on the right arm of the informant as deposed to by P.W.1 in his evidence. It, therefore, appears that some dissentions and rancor were existing between the informant and the convict. 11. It also transpires from the evidence of P.W.1 that subsequent to biting to him, while they were standing and discussing in front of their house, the convict arrived there and threw stones and brick, which struck on the chest of his father as a result of which, his father fell down. Similarly, the evidence of P.W.2 also transpires that the convict pelted bolder and brick which struck his father-in-law (deceased) and he was moved to hospital, where he was declared dead. On a close scrutiny of the evidence of prosecution witness, it goes without CRLA No.442 of 2012 Page 10 of 15 saying that the prosecution has established that the convict had pelted stone and brickbat at the deceased and one of it hit the chest of the deceased, who fell down on the ground and died. In the circumstance, the evidence of doctor also plays important role and it transpires from the evidence of doctor-P.W.14 that on 14.01.2008 at about 7 P.M., he had examined the informant-Bijaya Mahabhara, the elder brother of the informant, P.W.6-Malaya Mahabhara and the convict- Santosh Mahabhara, but he found one teeth bite injury on P.W.1 and one bruise of size 0.6 inches x 0.3 inches on P.W.6 and both the injuries on P.Ws.1 and 6 were opined to be simple in nature, whereas P.W.14 had detected four injuries such as lacerated wound, bruise/abrasion on the person of the convict. On a comparative analysis of evidence of P.Ws.1 and 6, it appears that there was a fight between the convict on one side and the informant and his brother on other side and in a fit state of rage, the convict had pelted stone and brick at him, which accidentally hit on the chest of the deceased. The CRLA No.442 of 2012 Page 11 of 15 evidence of postmortem conducting doctor P.W.5-Dr. Sradhakar Gartia does not reveal any external injury on the person of the deceased and the death of the deceased was on account of rupture of heart and liver. In the aforesaid circumstance of evidence, one can gather that the intention was conspicuously absent on the part of the convict to cause death of the deceased inasmuch as he had not come to the spot prepared to kill the deceased, rather during the fight on account of scuffle and altercation with informant’s group, he had thrown stone and brickbat after being thrashed by the informant’s party, but unfortunately one of the brickbat hit on the chest of the deceased, as a result he fell down and died and therefore, only knowledge can be attributed to the convict in the circumstance of transaction of death of the deceased inasmuch as it would be within the knowledge of convict that if a person was hit by a brickbat or stone on his chest with force, then there is every chance of the death of such person receiving assault. CRLA No.442 of 2012 Page 12 of 15 12. In Jawahar Lal and another vs. State of Punjab; 1983 (4)SCC 159 wherein the Apex Court has held as under:- “20. Looking to the age of the 1st appellant at the time of the occurrence, the nature of the weapon used, the circumstances in which one blow was inflicted, the time of the day when the occurrence took place and the totality of other circumstances, namely, the previous trivial disputes between the parties, we are of the opinion that the 1st appellant could be attributed the knowledge that he was likely to cause an injury which was likely the 1st to cause death. Accordingly, appellant is shown to have committed an offence under Section 304, Part II of the Indian Penal Code, 1860 and he must be convicted for the same and sentenced to suffer rigorous imprisonment for five years maintaining the sentence of fine.” 13. In Camilo Vaz vs. State of Goa; 2000 (9) SCC 1, wherein the accused was found to have hit the deceased with a danda during a pre-meditated gang fight resulting in death of the victim. In this decision, the Apex Court while converting the conviction of the accused to one U/S 304 Part-II of the IPC has observed as under:- “14. When a person hits another with a danda on a vital part of the body with such force that the person hit meets his death, knowledge has imputed to the to be accused. In such situation the case will fall in CRLA No.442 of 2012 Page 13 of 15 part II of Section 304 of IPC as in the present case.” 14. In view of the aforesaid discussion of facts and evidence together with the principle laid down by the Apex Court in the decisions referred to above and taking into account the evidence of doctor-P.W.5, who has not opined as to whether the injury was sufficient in ordinary course of nature to cause death of a person and the evidence on record being conspicuously silent with regard to the intention of the convict to kill the deceased, only knowledge can be attributed to the convict for the death of the deceased. In such situation, the conviction of the appellant cannot be sustained for offence U/S 302 of the IPC, rather the liability of the convict would be to the extent of committing culpable homicide not amounting to the murder within the meaning of Section 304 Part-II of the IPC. Accordingly, the conviction of the appellant is altered to Section 304 Part-II of the IPC and he is therefore, sentenced to undergo rigorous imprisonment for 6 years. CRLA No.442 of 2012 Page 14 of 15 15. In the result, the appeal stands allowed in part on contest, but no order as to costs. Consequently, the judgment of conviction and order of sentence passed by the learned Addl. Sessions Judge, Kuchinda in S.T. Case No.82/18 of 2008 is hereby modified to the extent indicated above. 16. Since the appellant is on bail, he be directed to surrender to custody to suffer the remainder of the sentence, if he has not already undergone the sentence. I Agree (G. Satapathy) Judge (D.Dash) Judge Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 01-Mar-2024 10:45:06 Orissa High Court, Cuttack, Dated the 29th day of February, 2024/Kishore CRLA No.442 of 2012 Page 15 of 15