The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK JCRLA No.138 of 2005 From judgment and order dated 16.08.2005 passed by the Ad- hoc Additional Sessions Judge, Fast Track, Berhampur in Sessions Case No.09 of 2004 (S.C. No.374/04 GDC). --------------------- Upada Kubenu ....... Appellant -Versus- State of Odisha ....... Respondent For Appellant: - Mr. Pulakesh Mohanty Advocate For Respondent: - Mr. Rajesh Tripathy Addl. Standing Counsel ---------------------- P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO AND THE HONOURABLE MR. JUSTICE CHITTARANJAN DASH --------------------------------------------------------------------------------------------------- Date of Hearing and Judgment: 13.10.2023 --------------------------------------------------------------------------------------------------- S.K. SAHOO, J. The appellant Upada Kubenu faced trial in the Court of learned Adhoc Additional Sessions Judge, Fast Track, Berhampur in Sessions Case No.09 of 2004 (S.C. No.374 of 2004 GDC) for commission of offence under section 302 of the Indian Penal Code (hereinafter <the IPC=) on the accusation that on // 2 // 30.03.2004 at about 9.00 p.m. in village Danda (Chidipudi), he committed murder by intentionally causing the death of Upudu Jagannath (hereinafter >the deceased?). The learned trial Court vide impugned judgment and order dated 16.08.2005 found the appellant guilty of the offence charged and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000/- (rupees five thousand), in default, to undergo R.I. for six months more. Prosecution Case: 2. The prosecution case, as per the first information report lodged by Upada Pandeya (P.W.4) before the O.I.C., Jarada police station on 31.03.2004, in short, is that the appellant was working outside the State and when he returned to his village Chidipudi, he suspected that his wife was having illicit relationship with Landa Balaji, who is a friend of the deceased. The deceased was the son of the informant. It is further stated that on 30.03.2004 in the evening hours, the appellant created disturbances with the deceased and also slapped him four to five times, but the deceased did not respond. At about 9.00 p.m. in the night, when the deceased was going towards the village pond for attending the call of nature, all on a sudden the appellant came out of his house with one >Dhanakhuta Pahurani? which is marked as >M.O.I? and assaulted on the head of the deceased as Page 2 of 42 // 3 // a result of which the deceased sustained bleeding injury and fell down in front of the house of Upada Chandreya and the appellant then dealt another blow on the chest of the deceased with M.O.I, which he was holding and the deceased shouted >Marigali Marigali? and when the co-villagers, namely, Upada Madaya (P.W.1), D. Areswamy (P.W.5) and Upada Bhubuni along with the informant (P.W.4) rushed towards the spot, they tried to obstruct the appellant but the appellant fled away from the spot leaving M.O.I. at the spot. The deceased was shifted to Jayantipur for treatment in a tractor and from that place, he was shifted to Ichhapur in a tempo, but on the way near Jarada junction, the deceased died. The informant (P.W.4) brought the dead body of the deceased to his village and since it was late night, in the morning, he lodged the first information report. On receipt of the written report of P.W.4, the O.I.C., Jarada police station Nilakantha Prasad Patra (P.W.8) registered Jarada P.S. Case No.27 dated 31.03.2004 under section 302 of the I.P.C. and he himself took up investigation of the case. During course of investigation, P.W.8 examined the informant (P.W.4), visited the spot, prepared the spot map (Ext.8) and seized the blood stained earth and sample earth from the spot under seizure list Ext.1. He held inquest over the dead body of the deceased in presence of the witnesses and Page 3 of 42 // 4 // prepared the inquest report marked as Ext.3. He also seized M.O.I on production of the informant (P.W.4) at the spot as per seizure list (Ext.2). The dead body was sent to M.K.C.G. Medical College & Hospital, Berhampur for post-mortem examination. The I.O. (P.W.8) examined other witnesses of village Chidipudi and on 01.04.2004, he arrested the appellant and forwarded him to Court. He seized the wearing apparels of the deceased on production of the constable as per the seizure list (Ext.9). He received the post mortem examination report from the Superintendent of M.K.C.G. Medical College & Hospital, Berhampur and then made a query to the Medical Officer, who conducted autopsy over the dead body of the deceased to ascertain whether the injuries found on the dead body would be possible by M.O.I and he also received the query report from the Medical Officer marked as Ext.7. On the prayer of the I.O. (P.W.8), the seized articles i.e. blood stained earth, sample earth, wearing apparels of the deceased were sent to R.F.S.L., Berhampur for chemical examination and on 24.06.2004, P.W.8 handed over the charge of investigation to his successor Pratap Chandra Tripathy (P.W.7), who on completion of investigation, submitted the charge sheet under section 302 of the I.P.C. against the appellant. Page 4 of 42 // 5 // Framing of Charge: 3. After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned trial Court charged the appellant under section 302 of the I.P.C. on 30.09.2004 and since the appellant refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. Prosecution Witnesses, Documents Exhibited By Prosecution & Material Objects: 4. During the course of trial, in order to prove its case, the prosecution has examined as many as eight witnesses. P.W.1 Upada Madaya, P.W.5 D. Areswamy, who are the co-villagers of the informant and the appellant and also eye witnesses to the occurrence supported the prosecution case. P.W.1 is also a witness to the seizure of sample earth and blood stained earth and the weapon of offence (M.O.I) as per seizure lists Ext.1 and Ext.2 respectively and also a witness to the inquest over the dead body of the deceased vide Ext.3 and the dead body challan vide Ext.4. P.W.2 Manmath Chandra Padhy is the scribe of the F.I.R. who stated that P.W.4 requested him to scribe the F.I.R. Page 5 of 42 // 6 // and accordingly, he scribed the F.I.R. as per the version of P.W.4. P.W.3 Upada Bhubnesh is the son of P.W.1, who is also an eye witness. He supported the prosecution case. P.W.4 Upada Pandeya is the informant and the father of the deceased and also an eye witness to the occurrence. He supported the prosecution case. P.W.6 Dr. Sachidananda Mohanty was the Assistant Professor in F.M. & T. Department attached to M.K.C.G. Medical College and Hospital, Berhampur, who conducted the post mortem examination on the dead body of the deceased on 31.03.2004 and proved his report vide Ext.6. On receipt of the query made by the Investigating Officer relating to the possibility of the injuries sustained by the deceased by the seized >Dhanakuta Pahurani? (M.O.I), he gave his opinion vide Ext.7. P.W.7 Pratap Chandra Tripathy was the Officer in- charge attached to Jarada police station, who is the second Investigating Officer in the case and he submitted the charge sheet. P.W.8 Nilakantha Prasad Patra was the S.I. of Police
Facts
attached to Jarada police station, who is the first Investigating Page 6 of 42 // 7 // Officer in the case. On 24.06.2004, he handed over the charge of investigation to Pratap Chandra Tripathy (P.W.7). The prosecution exhibited eleven documents. Ext.1 is the seizure list in respect of sample earth and blood stained earth, Ext.2 is the seizure list in respect of weapon of offence, Ext.3 is the inquest report, Ext.4 is the dead body challan, Ext.5 is the F.I.R., Ext.6 is the post mortem report, Ext.7 is the query report in respect of weapon of offence, Ext.8 is the spot map, Ext.9 is the seizure list in respect of the wearing apparels of the deceased and the command certificate, Ext.10 is the copy of forwarding report in respect of sending exhibits to R.F.S.L., Berhampur and Ext.11 is the Chemical Examination Report. The prosecution also proved six material objects. M.O.I is the weapon of offence, M.O.II is a white coloured dhoti stained with blood, M.O.III is a white half shirt stained with blood, M.O.IV is a white coloured chadi, M.O.V is the sample earth kept in a packet and M.O.VI is a packet containing blood stained earth. Defence Plea: 5. The defence plea of the appellant is one of denial and it is stated that he has been falsely implicated in the case. Page 7 of 42 // 8 // The defence has not examined any witness nor proved any documentary evidence. Finding of the learned Trial Court: 6. The learned trial Court, after assessing the oral as well as the documentary evidence on record, came to hold that the death of the deceased was homicidal in nature. The learned trial Court after analyzing the evidence of P.Ws.1, 3, 4 & 5, who are the eye witnesses to the occurrence so also the medical evidence, came to hold that the medical evidence fully corroborates the ocular evidence of P.Ws.1, 3, 4 & 5. The learned trial Court further held that on a close scrutiny of the evidence of P.Ws.1, 3, 4 & 5, their evidence is found to be clear, consistent and trustworthy and from their evidence, it came to the conclusion that the appellant is the sole author of the crime. The learned trial Court further held that from the direct evidence of the eye witnesses coupled with the medical evidence, it has been established beyond all reasonable doubt that it is the appellant who caused the injuries on the vital parts of the body of the deceased and when the deceased died on account of the injuries inflicted on him as per the post mortem report, it must be held that the prosecution has succeeded in establishing the fact that the deceased died a homicidal death and the appellant intentionally caused the injures on the vital parts of the body of Page 8 of 42 // 9 // the deceased and therefore, it was held that the prosecution has succeeded in bringing home the charge under section 302 of the I.P.C. against the appellant beyond all shadow of reasonable doubt and found him guilty of the offence charged. Contentions of Parties: 7.
Legal Reasoning
was not using any spectacle. We find that the defence has failed to demolish the evidence of P.W.4 in any manner and he has stood the test of cross-examination well and from his evidence, it appears that he had seen the occurrence right from the beginning till the end. The identity of the appellant cannot be Page 15 of 42 // 16 // disputed particularly in view of the fact that they are co-villagers and as stated by P.W.4, it was moonlight and there was electric light coming from the outer verandah of P.W.1. Therefore, we are of humble view that the evidence of P.W.4, who is none else than the father of the deceased and who is not supposed to spare the real culprit and implicate somebody falsely is found to be consistent and creditworthy. Coming to the evidence of other eye witness, i.e., P.W.1, it appears that he has stated that on the date of occurrence at about 9.00 p.m., he heard >Marigala Marigala? sound near the house of Chandreya and found a gathering and when he came there, he found the appellant was standing there holding M.O.I and the appellant dealt a blow on the chest of the deceased and prior to that, the deceased had sustained bleeding injury on the head. P.W.1 further stated that he snatched away M.O.I from the hands of the appellant and gave the same to Pandeya (P.W.4) and immediately the appellant left the spot. P.W.1 has further stated as to how the deceased was shifted first to Jayantipur in a tractor and how they tried to shift the deceased to Ichhapur hospital in an auto rickshaw but the deceased expired on the way for which they brought the dead body of the deceased back to the village. P.W.1 was also cross- examined at length by the learned defence counsel and in the Page 16 of 42 // 17 // cross-examination, he has specifically stated that he had seen while the appellant gave one blow on the chest of the deceased by means of M.O.I by raising the M.O.I to its head height and he saw the assault of the appellant to the deceased from a distance of 10 cubits away from the place where he was standing. He further stated that hearing >Marigali Marigali? sound from the spot, he came from his house and rushed towards the spot. The evidence of P.W.1 has not been shaken at all in the cross- examination and his evidence that he saw the second blow given to the deceased by the appellant on the chest by M.O.I corroborates the version of P.W.4 that on hearing >Marigali Marigali? sound, P.W.1 arrived at the scene of occurrence. P.W.3 is another eye witness to the occurrence and he has stated that on the occurrence day in the night, he was watching television in his house and at that time P.W.4 shouted >Mo Pua Marigala, Mo Pua Marigala? and hearing such sound, he immediately came out of his house and found the deceased was lying down on the thrashing floor of Chandreya having sustained bleeding injury on the head and he could see the deceased with the help of an electric light which was burning on the outer verandah of his house. P.W.3 further stated that the appellant dealt a blow on the chest of the deceased by means of M.O.I and he has also stated about the presence of other eye witnesses like Page 17 of 42 // 18 // P.W.1, P.W.4 and P.W.5 at the spot. He specifically stated that the appellant fled away from the spot throwing M.O.I at the spot. Like the witnesses i.e. P.W.1 and P.W.4, P.W.3 has also stated about shifting of the deceased in a tractor first to Jayantipur and then attempts were made to shift him to Ichhapur in an auto rickshaw but on the way, he succumbed to the injuries for which the dead body was brought back to the village. In the cross- examination, the learned defence counsel has asked about his relationship with P.W.4 and P.W.3 has admitted that P.W.4 is the elder cousin brother of his father and the deceased in that way was his cousin brother. No specific question to doubt his credibility on the assault part has been asked in the cross- examination by the learned defence counsel and questions have been put relating to shifting of the injured from the spot first to Jayantipur and then to Ichhapur and he has specifically stated that the dead body of the deceased was shifted on the trolley of the tractor and about twenty to thirty persons went on the said tractor in that night and he stated that the distance between Jayantipur to village Chidipudi would be two to three miles and there is no pitch road connected from Jayantipur to his village. Nothing substantial has been elicited in the cross-examination to doubt the version of P.W.3. Page 18 of 42 // 19 // P.W.5 is another eye witness to the occurrence and he has stated that after taking dinner while he was coming outside from his residential house, he heard hulla and found some persons gathered in front of the house of Chandreya and when he went towards the spot, the appellant dealt a blow by means of M.O.I on the head of the deceased as a result of which the deceased fell down and then again the appellant dealt another blow by means of M.O.I on the right side of the chest and then fled away from the spot. He further stated that he could identify the appellant with the help of burning electric light. He has also stated about the shifting of the deceased first to Jayantipur and then from Jayantipur to Ichhapur like the other eye witnesses. No questions have been specifically put by the learned defence counsel in the cross-examination about the assault part, but questions have been put about the M.O.I and P.W.5 stated that he had not seen whether M.O.I was taken by anybody to the verandah when they shifted the dead body to the outer verandah of P.W.4. Therefore, the version of all these four eye witnesses to the occurrence i.e. P.Ws.1, 3, 4 and 5 are found to be consistent and there are no material contradictions in their evidence. Since the evidence has come on record that electric light was available at the spot so also it was a moonlit night, Page 19 of 42 // 20 // therefore, there would not have been any difficulty on the part of the eye witnesses to indentify the appellant and see the occurrence without any hindrance more particularly when the appellant was a co-villager of all the eye witnesses. From the evidence of the eye witnesses, it is established that on the date of occurrence, while the deceased was going to attend the call of nature from his house, the appellant all on a sudden came out with M.O.I and first dealt a blow on the head of the deceased and after the deceased fell down on the thrashing floor of one Chandreya, the second blow was given on his chest and then the appellant leaving M.O.I at the spot, fled away. If at this stage, we see the evidence of the doctor (P.W.6), it would appear that M.O.I was sent to him by the I.O. for seeking his opinion about the possibility of the injuries caused on the deceased by such weapon and the doctor after examining M.O.I specifically stated that external injuries nos.(i) and (ii) including the corresponding internal injury so also internal injury no.(iii) could be possible by M.O.I. He has proved his query report i.e. marked as Ext.7. Therefore, the ocular evidence of four eye witnesses gets sufficient corroboration from the medical evidence adduced by the doctor (P.W.6) and the post mortem report (Ext.6). Page 20 of 42 // 21 // Whether the act of the appellant comes under 302 of the I.P.C. or it is a case of culpable homicide not amounting to murder: 10. Now, coming to the question of the submission made by the learned counsel for the appellant as to whether the offence would be one under section 302 of the I.P.C. or section 304 Part-I of the I.P.C., there is no dispute that the culpable homicide as defined under section 299 of the I.P.C. is murder if it comes within any of the four clauses as enumerated under section 300 of the I.P.C., however, culpable homicide is not murder, if it comes within any of the five exceptions enumerated under section 300 of the I.P.C. If it comes within any of the five exceptions then it may come either under section 304 Part-I of the I.P.C. or section 304 Part-II of the I.P.C. When the accused had intention to cause death of the deceased or cause such bodily injury as is likely to cause death then, the offence committed is punishable under section 304 Part-I of the I.P.C. and when it is proved that the accused had no intention to cause death of the deceased or to cause such bodily injury as is likely to cause death but had the knowledge that his act is likely to cause the death of the deceased then section 304 Part-II of the I.P.C. would be attracted. Page 21 of 42 // 22 // At first, we want to discuss the citations placed by the learned counsel for the respective parties. Discussing the citations placed by the learned counsel for the appellant first, we found that in the case of Shanmugam (supra), P.W.6, the doctor noticed as many as six injuries on different parts of the body of the deceased including the stab wounds on the chest and stomach. It was held that the objective test whether the injuries were sufficient in the ordinary course of nature to cause death, has to be satisfied to bring home the guilt of the accused under clause (3) of section 300 of the I.P.C. The Hon?ble Court held that a reasonable doubt arose whether the tear wounds on the gall bladder which according to the doctor were capable of causing death, were sufficient in the ordinary course of nature to cause death. At the same time, the nature of injuries and the medical opinion unmistakably point to the fact that the bodily injuries inflicted on the deceased were of such nature that those were likely to cause death. There can be no doubt that the accused intended to cause and did cause the injuries and therefore, he is liable to be punished under the first part of section 304 of the I.P.C. In the case of Nankaunoo (supra), the Hon?ble Supreme Court held that intention is different from motive. It is the intention with which the act is done that makes a difference Page 22 of 42 // 23 // in arriving at a conclusion whether the offence is culpable homicide or murder. The third clause of section 300 Indian Penal Code consists of two parts. Under the first part, it must be proved that there was an intention to inflict the injury that is present and under the second part, it must be proved that the injury was sufficient in the ordinary course of nature to cause death. It was further held that the emphasis in clause three of section 300 Indian Penal Code is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary course of nature. When the sufficiency exists and death follows, causing of such injury is intended and causing of such offence is murder. For ascertaining the sufficiency of the injury, sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused and sometimes both are relevant. Depending on the nature of weapon used and situs of the injury, in some cases, the sufficiency of injury to cause death in the ordinary course of nature must be proved and cannot be inferred from the fact that death has, in fact, taken place. In the case of Major Singh (supra), the Hon?ble Supreme Court held that the deceased died due to the injury caused by accused. Distinction between whether an offence is culpable homicide amounting to murder or culpable homicide not Page 23 of 42 // 24 // amounting to murder has been dealt in the case of Mohd. Rafiq -Vrs.- State of Madhya Pradesh reported in (2021) 10 Supreme Court Cases 706 and it was held that even though it is difficult to distinguish whether the punishment for offence would fall under section 302 or section 304 of Indian Penal Code, there is a subtle distinction of degree of intention and knowledge involved in both the crimes. Intention plays a vital role in criminal jurisprudence. An offence may not be said to be committed if the prosecution fails to prove the intention to commit that crime. Intention is pivotal to decide whether the accused has committed culpable homicide amounting to murder or culpable homicide not amounting to murder. Along with intention, knowledge and the degree of crime, i.e. how the deceased was killed, plays an important role in deciding. In the case of Ratan Kumar (supra), the Division Bench of this Court held as follows:- =7. The question that arises for consideration is, what offence the appellant has committed. The three external lacerated injuries found by the doctor (P.W.5) were, one on the right frontal bone horizontally placed, the second on the left occiput longitudinally placed and the third over the left temporal bone longitudinally placed. Besides these, there were bruises on the left angle of mandible, upper eye-lids and Page 24 of 42 // 25 // multiple abrasions over the back. On dissection, the doctor found fracture of the right frontal bone, fracture of left occiput fracture of the left temporal bone and fracture of left mandible at the angle. The doctor opined that the death was caused due to haemorrhage and shock but he did not opine as to which of these injuries was individually sufficient in the ordinary course of nature to cause death. Rather in paragraph 2 of his cross-examination the doctor stated that the internal injury nos.(i) to (iii) >may be fatal.? Therefore, doubt arises whether internal injuries (i) to (iii) were sufficient in the ordinary course of nature to cause death. In the absence of the opinion of the doctor that the injuries were sufficient in the ordinary course of nature to cause death, we would hold that they were likely to cause death. 8. Considering the medical opinion that the injuries were likely to cause death, we are of the view that the appellant did not intend to cause death, but having caused three injuries on the hand itself, he indented to cause three injuries which are likely to cause death. xxx xxx xxx 10. In the result, the appeal is allowed in part. The order of conviction under section 302, I.P.C. is set aside and instead, the appellant is Page 25 of 42 // 26 // convicted for the offence under section 304, Part-I of the I.P.C….= Coming to the decision relied upon by the learned Addl. State Counsel, we find that in the case of Jai Dutt (supra), the Hon?ble Supreme Court taking into account the injuries sustained by the deceased and the reasoning given by the High Court for altering the conviction from section 302 of the I.P.C. to 326 of the I.P.C. on the ground that there was no fracture found on the head of the deceased, it is held as follows: <19. Even otherwise considering section 326 I.P.C., we fail to appreciate how the case would fall under section 326 I.P.C. when the deceased actually died due to grievous hurt and the injuries were on the vital part of the body –head. At this stage, it is required to be noted that in fact the accused went to the field of the complainant where his father deceased Ram Autar was also working. All of them went with the deadly weapons and had beaten the deceased Ram Autar and caused serious injuries and immediately the deceased Ram Autar was required to be taken to the hospital and he was first taken to PHC and thereafter to Lucknow, Hospital where he succumbed to the injuries. For the reasons stated above also the High Court has committed grave error in convicting the accused for the offence under section 326 I.P.C. Page 26 of 42 // 27 // by acquitting the accused for the offence under section 302 I.P.C.= At this stage, we want to discuss two decisions of the Hon?ble Supreme Court on this point. In the case of Khuman Singh and others -Vrs.- State of M.P. reported in 2005 Supreme Court Cases (Cri) 1451, the Hon?ble Supreme Court held as follows:- <6.…..The injuries inflicted were by lathis carried by the appellants and some of them picked up stones which they found lying nearby. Thirdly, the medical evidence discloses that the following injuries were caused:- 1. Swelling of the size of 3 cm. x 3 cm. on the outer margin of the eye and right side of the face. 2. Swelling of diameter 4 cm. on the head bone of left parietal bone. 3. A spreading swelling over the left of the nostril and on the Maxillary bone of the left face. 4. Spreading swelling in the region of the left collar bone. 5. In the half upper portion of the left arm spreading swelling. 6. Contusion spread around the nipple of left side of the chest. Page 27 of 42 // 28 // 7. Swelling in the region of Ribs 10, 11, 12 of the backbone and right side of the back. 7. The internal examination disclosed that though there was clotting of blood under the upper skin on the left parietal bone there was no underlying fracture. The 11th and 12th ribs which had been fractured had entered the liver. The deceased had suffered several fracture of bones but none of them appear to be such as would have caused his death in the ordinary course nature. 8. The doctor who had conducted the post- mortem examination was examined as P.W.10 but in the course of his deposition he did not state that he had found any injury which was sufficient in the ordinary course of nature to cause death. His opinion appears to be that "death has been caused due to the injuries caused on his person and following the damage of the liver and profuse bleeding". In the absence of any clear medical opinion we have examined the nature of injuries inflicted on the deceased as disclosed by the evidence on record. From the external and internal injuries found, we have come to the conclusion that it was the injury caused to the liver resulting in profuse bleeding which caused the death. If the liver had not been damaged, perhaps death would not have resulted. We say so because Page 28 of 42 // 29 // there is no clear medical opinion on this aspect. The question then is whether in this state of the evidence on record, the case is covered by section 300 "thirdly" I.P.C., that is to say, whether the appellants committed the act with the intention of causing bodily injury to the deceased and the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death. In Virsa Singh -Vrs.- State of Punjab, this Court considered the facts and held that the prosecution must prove the following facts before it could bring the case under section 300 "thirdly". Firstly, it must establish, quite objectively that a bodily injury is present; Secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part Page 29 of 42 // 30 // of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. 9. In Anda -Vrs.- State of Rajasthan the same principle has been reiterated in the following words:- "7. The third clause views the matter from a general stand point. It speaks of an intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death…. The sufficiency is the high probability of death in the ordinary way of nature and when this exists and death ensues and the causing of such injury is intended the offence is murder. Sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused, and sometimes both are relevant. The determinant factor is the intentional injury which must be sufficient to cause death in the ordinary course of nature. If the intended injury cannot be said to be sufficient in the ordinary course of nature to cause death, that is to say, the probability of death is not so high, the offence does not fall within murder but within culpable homicide not amounting to murder or something less." Page 30 of 42 // 31 // In the same judgment this Court cautioned that no case can be an authority on facts. This is always a question of fact as to whether the accused shared a particular knowledge or intent. One must look for a common intention, that is to say, some prior concert and what that common intention is. One must look for the requisite ingredient that the injuries which were intended to be caused were sufficient to cause death in the ordinary course of nature, and whether the accused possessed the knowledge that the injuries they were intending to cause were sufficient in the ordinary course of nature to cause death. 10. Keeping these principles in mind and applying them to the facts of this case, we find that the occurrence took place suddenly. There was no premeditation on the part of the appellants and quarrel really arose from a trivial issue. The parties had danced all night and nothing untoward had happened except this small incident. Thereafter they proceeded towards their respective villages. It is not the case of the prosecution that the appellants were armed with deadly weapons. Some of them were carrying lathis, as are usually carried by the tribals in that part of the State, and had not made any special preparation for the assault. Some others had just picked up stones when the deceased was overpowered, and assaulted him. Page 31 of 42 // 32 // It is, no doubt, true that they assaulted the deceased in such a manner that the deceased suffered several fractures, but the injury which caused the death of the deceased was the one suffered by him on account of the rib bone puncturing the liver. We are convinced that this injury was not intended by the appellants, and the injury suffered by the deceased on his liver was at best accidental. We therefore, hold that section 300 "thirdly" I.P.C. is not attracted, and it cannot be said that the appellants intended to cause any injury to the liver which perhaps proved fatal. There is no evidence to suggest that any of the other injuries suffered by him was sufficient to cause death in the ordinary course of nature.= In the case of Anbazhagan -Vrs.- The State represented by Inspector of Police reported in A.I.R. 2023 Supreme Court 3660, the Hon?ble Supreme Court held as follows:- <60. Few important principles of law discernible from the aforesaid discussion may be summed up thus:- (1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the Page 32 of 42 // 33 // intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. To illustrate: ’A’ is bound hand and foot. ’B’ comes and placing his revolver against the head of ’A’, shoots ’A’ in his head killing him instantaneously. Here, there will be no difficulty in holding that the intention of ’B’ in shooting ’A’ was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of section 300 of the IPC. Taking another instance, ’B’ sneaks into the bed room of his enemy ’A’ while the latter is asleep on his bed. Taking aim at the left chest of ’A’, ’B’ forcibly plunges a sword in the left chest of ’A’ and runs away. ’A’ dies shortly thereafter. The injury to ’A’ was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that ’B’ intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of ’B’ within Clause (3) of Section 300 of the IPC and render him guilty of the offence of Page 33 of 42 // 34 // murder although only single injury was caused. (2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused’s case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence Page 34 of 42 // 35 // under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC. (3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC, it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is ’guilty intention,’ whereas the second part would apply when there is no such intention, but there is ’guilty knowledge’. (4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder. (5) Section 304 of the IPC will apply to the following classes of cases: (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not Page 35 of 42 // 36 // of the higher degree of likelihood which is covered by the expression ’sufficient in the ordinary course of nature to cause death’ but is of a lower degree of likelihood which is generally spoken of as an injury ’likely to cause death’ and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death. To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC. (6) The word ’likely’ means probably and it is distinguished from more ’possibly’. When chances of happening are even or greater than its not happening, we may Page 36 of 42 // 37 // say that the thing will ’probably happen’. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death. (7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the Page 37 of 42 // 38 // case may be one of culpable homicide not amounting to murder as described under section 299 of the IPC. (8) The court must address itself to the question of mens rea. If clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack. (9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries. Page 38 of 42 // 39 // (10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case. (11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies. (12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he Page 39 of 42 // 40 // only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC.= 11. Learned counsel for the appellant is quite justified in his submission that the doctor who conducted post mortem examination has not opined either any individual injury or the combined effect of the injuries noticed by him on the person of the deceased were sufficient in ordinary course of nature to cause the death of the deceased. Though the doctor has noticed as many as five external injuries, but he has clarified that the injury nos.(iv) & (v) would be possible due to friction of body surface against hard blunt rough object or even by fall, on hard and rough surface. Injury nos.(i) & (ii) thus possible by the blow, which was given on the head and injury no.(iii) was possible by the blow, which was given on the chest by M.O.I. Taking into account the background of the case as appears from the evidence of P.W.4 that the appellant was suspecting the character of his wife to have kept illicit relationship with Landa Balaji of his village and that the deceased was the close friend of the said Landa Balaji and perhaps assisting his friend in such affair and that the appellant had complained before P.W.4 in that respect prior to the occurrence and the manner in which the occurrence has taken Page 40 of 42 // 41 // place and the post mortem report findings and particularly when the doctor has not opined that any of the injuries or the cumulative effect of the injuries were sufficient in the ordinary course of nature to cause death, we are of the humble view that the case would not fall within the ambit of murder as mentioned in section 300 of the I.P.C., but it would come within culpable homicide not amounting to murder and since the two body parts of the deceased on which the assault was made by the appellant as per the version of the eye witnesses and the type of weapon used would indicate the intention of the appellant of causing such bodily injury as was likely to cause death, we are of the view that the case squarely falls within the ambit of section 304 Part-I of the I.P.C. Accordingly, the order of conviction under section 302 of the I.P.C. is hereby set aside instead the appellant is convicted to one under section 304 Part-I of the I.P.C. We think to appropriate to sentence him to R.I. for ten years. In view of the financial condition of the appellant, we do not want to impose any fine on him. It is stated by learned counsel for the appellant that the appellant was taken into judicial custody on 01.04.2004 and he was never released on bail during trial and during pendency of the appeal, though he was granted bail by this Court vide Page 41 of 42 // 42 // order dated 19.05.2010, but the said condition was modified on 22.09.2010 whereafter the appellant has been released on bail. Therefore, if the appellant has not served the sentence imposed by us today, he shall surrender forthwith before the learned trial Court, failing which the learned trial Court shall take appropriate steps for his arrest to serve out his remaining part of the sentence, if any subject to provision under section 428 of Cr.P.C. The Jail Criminal Appeal is accordingly partly allowed. The trial Court records with a copy of this judgment be sent down to the concerned Court forthwith for information. Before parting with the case, I would like to put on record my appreciation to Mr. Pulakesh Mohanty, learned counsel for the appellant for rendering his valuable assistance towards arriving at the decision above mentioned. This Court also appreciates the valuable assistance provided by Mr. Rajesh Tripathy, learned Additional Standing Counsel. Orissa High Court, Cuttack The 13th October, 2023/Amit/RK Mishra Signature Not Verified Digitally Signed Signed by: RABINDRA KUMAR MISHRA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 09-Nov-2023 17:26:23 …………………………… S.K. Sahoo, J. ……………………………… Chittaranjan Dash, J. Page 42 of 42
Arguments
Mr. Pulakesh Mohanty, learned counsel for the appellant contended that the evidence of the witnesses are not consistent and there is delay in lodging the F.I.R. and the doctor, who conducted the post mortem examination has not stated that any particular injury or the cumulative effect of all the injuries noticed by him were sufficient in ordinary course of nature to cause death and therefore, the learned trial Court was not justified in convicting the appellant under section 302 of the I.P.C. and if the prosecution case is at all believed, then the case would come within the purview of section 304 Part-I of the I.P.C. Learned counsel placed reliance in the cases of Shanmugam -Vrs.- State of Tamil Nadu reported in (2002) 10 Supreme Court Cases 4, Nankaunoo -Vrs.- State of Uttar Pradesh reported in (2016) 3 Supreme Court Cases 317, Major Singh -Vrs.- State of Punjab and others reported in (2022) 6 SCR 800 and Ratan Kumar -Vrs.- State of Orissa reported in (1995) 8 Orissa Criminal Reports 79. Page 9 of 42 // 10 // Mr. Rajesh Tripathy, learned Additional Standing Counsel appearing for the State, on the other hand, supported the impugned judgment and submitted that there is no such delay in lodging the F.I.R. and the occurrence in question took place on 30.03.2004 at about 9.00 p.m. and the deceased was shifted to the hospital, but on the way when he expired and since it was late night, the dead body was brought to the village and on the next day early morning, the first information report was lodged by P.W.4 and the distance of the police station from the place of occurrence was 20 kms. as per the formal F.I.R. Therefore, it cannot be said that there was any delay in lodging the F.I.R., which gave opportunity to the prosecution to fabricate a version. Learned counsel for the State further submitted that the presence of the eye witnesses, who are the co-villagers, at the scene of occurrence, are very natural and all of them have consistently stated how the assault was made on the deceased and the version of the doctor corroborates the ocular version and the vital parts of the body on which the assault was made also indicates that the intention of the appellant was nothing but to commit murder of the deceased and when the doctor on examining M.O.I has opined that the injuries caused to the deceased were possible by such weapon, it cannot be said that there is any illegality or infirmity in the impugned judgment and Page 10 of 42 // 11 // therefore, the appeal should be dismissed. Learned counsel for the State placed reliance in the case of State of Uttar Pradesh -Vrs.- Jai Dutt and another reported in (2022) 3 Supreme Court Cases 184. Whether the deceased met with a homicidal death: 8. Adverting to the contentions raised by the learned counsel for the respective parties, let us first examine the evidence of the doctor (P.W.6) to verify whether the finding arrived at by the learned trial Court that the prosecution has established the deceased met with homicidal death is correct or not. P.W.6, who was the Assistant Professor in F.M. & T. Department, M.K.C.G. Medical College & Hospital, Berhampur stated that on 31.03.2004, he conducted the post mortem examination over the dead body of the deceased and he noticed the following external injuries:- (i) One lacerated wound present longitudinally over mid vertex of size 9 cm. x 0.5 cm. x skull deep; (ii) Contusion of size 7 cm. x 6 cm. present over left fronto temporal area; (iii) Parallel bruise present obliquely over abdomen starting from right nipple extending up to umbilicus of size 22 cm. x 1.5 cm.; (iv) Abraded contusion multiply numbered of various sizes and shape ranging from 0.5 cm. x Page 11 of 42 // 12 // 0.5 cm. to 2 cm. x 1 cm. over right side of face, right pectoral area; (v) Abraded contusion of size 4 cm. x 0.5 cm. placed vertically over the middle of sin of left tibia. On dissection, he found the following internal injuries:- left parieto fracture temporal (i) Defuse scalp hematoma involving almost whole of vertex with both temporal muscle; (ii) The bone corresponding to external injury No.(ii) found depressed involving an area of 3 cm. x 2.5 cm. with extension of line medically backwards and anteriorly. The coronal suture is found to be specially on the right side; (iii) Corresponding to external injury No.(i) the underline skull shows linear fracture line for a distance about 10 cm.; (iv) Subdural hematoma on either side of cerebral hemisphere corresponding to external injury No.(i); (v) Fracture of ribs 3rd to 6th in midclavicular line on right side within underline contusion of lungs. The doctor (P.W.6) further stated that the above mentioned injuries were ante mortem and homicidal in nature. External injury Nos.(i) & (ii) with corresponding internal injuries could be caused by hard and blunt trauma or even by lathi while external injury No.(iii) could be caused by lathi. Rest of the injuries could be possible due to friction of body surface against hard blunt rough object or even by fall on hard and rough Page 12 of 42 // 13 // surface. The deceased died of injury on head and its complications thereof. The time since death at the time of post mortem examination was within 18 to 24 hours. There is no challenge to the evidence of the doctor in the cross-examination and the learned counsel for the appellant has also not challenged that the death of the deceased to be homicidal in nature. After going through the inquest report, evidence of the doctor (P.W.6) and post mortem report findings, we are of the humble view that the conclusion arrived at by the learned trial Court that the deceased met with a homicidal death is quite justified. Analysis of the evidence of the eye witnesses: 9. Now, coming to the evidence of the eye-witnesses, it appears that P.W.4 Upada Pandeya is the father of the deceased who stated to have seen the occurrence right from the beginning till end. He has stated that the appellant was suspecting the character of his wife that she had kept illicit relationship with one Landa Balaji of village Chidipudi, who happened to be a close friend of the deceased. P.W.4 has further stated that on 30.03.2004 at about 9.00 p.m., the occurrence took place in front of his house and at that point of time, he was sitting on his verandah of his house and the deceased was going to attend the call of nature to the nearby tank and while the deceased was so Page 13 of 42 // 14 // proceeding, the appellant all on a sudden appeared before him and dealt a blow on his head by means of M.O.I with force as a result of which the deceased fell down on the thrashing floor of one Chandreya having sustained bleeding injury on the head and cried >Marigali Marigali? and when the deceased fell down, the appellant dealt another blow on his chest with M.O.I and the deceased sustained further injury and raised >Marigali Marigali? sound and hearing his cry, Upada Madaya (P.W.1), D. Areswamy (P.W.5) and one Bhubenshu rushed to the spot. P.W.4 further stated that all of them took the deceased to the house of Madaya and when they tried to give water to him, the deceased did not take the same and when they reached near the deceased, the appellant fled away from the spot leaving M.O.I. Thereafter, they shifted the deceased to Jayantipur for treatment by means of a tractor belonging to one Tamaya of their village and from Jayantipur, while they were taking the deceased to Ichhapur hospital by means of an auto rickshaw, at Jarada junction, the deceased expired for which they returned to their village along with the dead body of the deceased and kept the dead body near the village school and on the next day, before the police the matter was reported. In the cross-examination, P.W.4 has stated that P.W.2 Padhi Babu scribed the first information report. He admitted that P.W.1 is his cousin brother and P.W.3 is the son of Page 14 of 42 // 15 // P.W.1. However, he has disputed the suggestion of the defence that P.W.5 is the son of his sister. He further stated that there was no electric light at the spot from any electric pole but a 200 watt bulb was burning at the outer verandah of the house of P.W.1 near the spot. When a question was put by the learned defence counsel, P.W.4 stated that he could recognize the appellant at the time of the incident by the help of moonlight as well as from the electric light focus which was coming from the outer verandah of P.W.1. About the knowledge of the illicit relationship between the wife of the deceased with Landa Balaji, P.W.4 stated that it is the appellant who told him that his wife had kept illicit relationship with Landa Balaji prior to the incident. He further stated that when the appellant dealt the second blow on the chest of the deceased by means of M.O.I, at that point of time he was proceeding towards the spot to save his son and simultaneously, P.Ws.1, 3, and 5 reached at the spot. He has denied the suggestion put forth by the learned defence counsel that his eye sight was defective and he specifically stated that he