MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.87 of 2008 In the matter of an Appeal under section 383 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 9th November, 2016 & 10th November, 2016 respectively passed by the learned Ad hoc Additional Sessions Judge (F.T.), Champua in S.T. Case No.41/148 of 2005. ---- Damu Naik …. Appellant -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Ms. Arusmita Acharya For Respondent - Mr.G. N. Rout, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing :15.03.2024 : Date of Judgment : 15.04.2024 D.Dash, J. The Appellant, by filing this Appeal from inside the jail, has assailed the judgment of conviction and order of sentence dated 9th November, 2016 & 10th November, 2016 respectively passed by the learned Ad hoc Additional Sessions Judge (F.T.), Champua in S.T. Case No.41/148 of 2005 arising out of G.R Case No.68 of 2005, corresponding to Joda P.S. Case No.39 of 2005 of the Court of the learned Judicial Magistrate First Class (J.M.F.C.), Barbil. JCRLA No.87 of 2008 Page 1 of 18 The Appellant (accused) thereunder has been convicted for commission of offence under section 302/323/34 of the Indian Penal Code, 1860 (in short, ‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.7,000/- (Rupees Seven Thousand) in default to undergo rigorous imprisonment for a period of two (2) years for commission of offence under section 302 of the IPC; and undergo rigorous imprisonment for six (6) months for commission of the offence under section 323/34 of the IPC with the stipulation that the substantive sentences would run concurrently. It is pertinent to mention here that along with this Damu Naik, three other accused persons, namely, Tuni Naik, Rupai
Legal Reasoning
Majhi & Shyamsundar Majhi, had faced the trial. The Trial Court, while acquitted Rupai and Shyam Sundar of the charges under section 341/323/302/34 of IPC, has convicted this accused under section 302/323/34 of the IPC and sentenced as aforesaid. The accused Tuni Naik has been convicted for the offence under section 323/34 of the IPC and sentenced to undergo rigorous imprisonment for six months. 2. PROSECUTION CASE:- A dispute had arisen between the family members of one Sunia Munda (Informant-P.W.7) on one hand and the family members of this accused, namely, Damu Nauik on the other for a pair of chappal. So, on 24.02.2005 around 7.00 p.m., it is stated JCRLA No.87 of 2008 Page 2 of 18 this accused and his wife, namely, Tuni Naik with Rupai Majhi and his son Shyamsundar Majhi came to the house of Sunia (Informant-P.W.7) and assaulted his sister-in-law (Bhauja), namely Jingi Munda (P.W.2) having dragged her from the house. It is further stated that when Gura Munda, the husband of Jingi (P.W.2) protested to such action of this accused and others, he was assaulted by them and fell down on the ground. It is then stated that this accused assaulted Gura by a stone on his head causing severe bleeding injuries. As a result, Gura became senseless when this accused and others fled away from the spot. Gura, while being taken to the Hospital, succumbed to the injuries. Prior to the death of Gura (deceased), Sunia (Informant- P.W.7), who happens to be the brother of Gura (deceased) had lodged a written report with the Sub-Inspector (S.I.) of Police attached to Bamebari Police Outpost. Receiving the said report, the S.I. of Police had entered the said fact in the Station Dairy Book maintained at the Police Outpost and taken up preliminary investigation while sending the report to the Officer -in-Charge (O.I.C.), of Joda P.S. for registration of the case. The S.I. of Police present in Joda P.S., in the absence of the O.I.C., received the said report, treated the same as FIR (Ext.1) and upon registration of the criminal case, directed the S.I. of Police of Bambari Police Outpost (P.W.9) to continue with the investigation. JCRLA No.87 of 2008 Page 3 of 18 3. In course of investigation, the Investigating Officer (I.O.- P.W.9) examined the informant (P.W.1). He (P.W.9), having visited the spot, prepared the spot map (Ext.11) and held inquest over the dead body of the deceased and prepared the report to that effect (Ext.9). The dead body of the deceased was sent for chemical examination by issuing necessary requisition. He (P.W.9) seized sample earth, blood stained earth and two numbers of blood stones from the spot and prepared the seizure list (Ext.8).One lathi, being produced by the Informant (P.W.7), the same was seized by the I.O. (P.W.9) under seizure list (Ext.12). The wearing apparels of all the accused persons were seized under seizure lists Exts.4, 5, 6 & 7 and the seizure list showing the seizure of wearing apparels of the deceased is Ext.2. The I.O. (P.W.9) then sent the seized incriminating articles for chemical examination through Court. Said I.O.(P.W.9), being transferred, handed over the charge of the investigation to the O.I.C. of Joda P.S. (P.W.10), who, after examining the some of the witnesses and completing the formalities, submitted the Final Form placing this accused along with three others to face the trial under section 341/323/302/34 of the IPC. 4. Learned J.M.F.C., Barbil on receipt of the Final Form, took cognizance of the offences and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial JCRLA No.87 of 2008 Page 4 of 18 commenced by framing the charge for the said offence against this accused along with other acquitted accused persons. 5. In the trial, the prosecution examined in total ten witnesses. Out of them, as already stated, P.W.7 is the informant, who happens to be the elder brother of the deceased and P.W.2 is his wife. P.W.6 is the wife of the Informant. P.W.1 is the scribe of the FIR (Ext.1). P.Ws.6 & 7 are the witnesses to the occurrence. P.Ws.3, 4 & 5 are the witnesses to the seizure. P.W.8 is the Doctor, who conducted the autopsy over the dead body of the deceased. The S.I. of Bamabera Police Outpost, who first took up the charge of the investigation, has been examined as P.W.9 and the O.I.C. of Joda P.S., who submitted the Final Form, at the end, has come to the witness box as P.W.10. 6. Besides leading the evidence by examining the above witnesses, the prosecution has proved several documents which have been admitted in the evidence and marked Ext. 1 to 16. Important of those are the F.I.R. (Ext.1), Inquest Report (Ext.9) and Postmortem Examination Report (Ext.10). The spot map prepared by the I.O. (P.W.9) and the chemical examiner’s report have been admitted in evidence and marked as Ext.11 & 15 respectively. JCRLA No.87 of 2008 Page 5 of 18 7. The accused has taken the plea of complete denial and false implication. He, however, has not tendered any evidence in support of such plea. 8. Miss. Arushmita Acharya, learned counsel for the Appellant (accused), from the very beginning, instead of raising any question with regard to the homicidal nature of death of the deceased, as has been proved by the prosecution, submitted that even accepting the version of the prosecution witnesses when the manner of the happenings in the incident would be seen with other surrounding circumstances as regards the cause of death of Gura, the way the injuries are said to have caused upon Gura etc, submitted that the Trial Court ought not to have held the accused Damu guilty for commission of the offence under section 302 of the IPC. According to him, accepting the prosecution case as laid, this accused ought to have been convicted under section 304-II of the IPC. Accordingly, he urged for alteration of the conviction of the accused from 302 of the IPC to one under section 304-II of the IPC and contended that the accused accordingly be visited with the sentence as deemed appropriate for the said offence.
Legal Reasoning
9. Mr.G.N. Rout, learned Additional Standing Counsel for the Respondent-State, while supporting the finding of guilt against the accused, as has been returned by the Trial Court for commission of the offence under section 302 of the IPC, JCRLA No.87 of 2008 Page 6 of 18 submitted that in the manner in which the incident has taken place, as has been deposed to by the prosecution witnesses and the role of this accused in assaulting the deceased on his head by the stone, being cumulative viewed with other surrounding circumstances, as have emerged in evidence, the conclusion of the Trial court that he accused is guilty of commission of the offence under section 302 of the IPC is not liable to be interfered with and, therefore, in the facts and circumstances of the case, alteration of the conviction of the accused to one under section 304-II of the IPC does not arise. 10. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also extensively travelled through the depositions of the prosecution witnesses (P.Ws.1 to P.W.10) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.16. 11. In order to address the rival submission confined to the alteration of the conviction, as aforesaid, we are now called upon to closely look at the evidence of the prosecution witnesses. Before that, we must have a look at the FIR (Ext.1), which has been lodged by Sunia (P.W.7), being scribed by one Nityananda Sitari (P.W.1). It is stated therein that on 24.02.2005 around 7.00 p.m, Sunia (Informant-P.W.7) had gone to the house of Rupai to ask for chappals, which this accused, who happens to be the son- JCRLA No.87 of 2008 Page 7 of 18 in-law of Rupai had taken from him. It is further stated therein that the moment, Sunia (Informant-P.W.7) asked for the Chappal, Rupai (since acquitted) got annoyed and quarreled with him. The wife of Sunia, namely, Jingi (P.W.2) then intervened and the matter subsided. It is also narrated therein that after that incident, when Sunia (Informant-P.W.7) and his wife (P.W.2) came to their house, this accused, his wife and father-in-law (Rupai) again came to their hosue and they then assaulted Jingi (P.W.2), the brother’s wife of Sunia (P.W.7) and dragged her out of the house. At that time, the brother of Sunia, namely, Gura (deceased) asked them not to do so. They all then assaulted Gura by making him lie on the ground and this accused thereafter, having picked up one stone from the nearby place, threshed upon the head of Gura (deceased). This Informant has been examined as P.W.7. He has stated that after the first part of the incident, he with his wife retuned home and then Jingi (P.W.2) went to her daughter’s house situated near the house of this accused to bring curry. She then asked this accused as to for what reason, they were not returning the Chapal to Sunia. It is his evidence that when Jingi (P.W.2) returned home, the accused with his wife Tuni followed her and literally chased her and when she was about to enter the house, Tuni, the wife of this accused gave a push at her from the back which led to the fall of Jingi (P.W.2) near the door. It is further JCRLA No.87 of 2008 Page 8 of 18 stated that then this accused Damu and his wife brought P.W.2 from their house and dragged her by catching the tuft of her heir. P.W.2 then was dragged out of the house and accused Damu and Tuni attempted to assault her when Gura (deceased) objected. At this, the accused and his wife got annoyed and assaulted Gura, being joined by others, Gura fell down. Above is the evidence relating to the incident as has been stated by P.W.1. The deceased and his wife had gone to the house of accused persons in demanding the chapal and there the deceased had heated discussion with Rupai, the father-in-law of this accused, when P.W.2 states that this accused Damu and another assaulted Gura by stone on his head causing bleeding injury. P.W.6 is the wife of Sunia (Informant-P.W.7). Her evidence is that in the evening, her husband Sunia (Informant-P.W.7) was sleeping and at that time, his elder brother-in-law Gura was sitting on the Verandah. It is stated that suddenly, the accused came to her house by chasing P.W.2 and thereafter, this accused Damu and his wife dragged P.W.2 (Jingi) outside holding tuft of her heir and this accused assaulted Gura as he came to protest. It is also stated that another associate of this accused, namely, Muna gave a fist blow on the right side ear of Gura, which led to his fall. The first and second part of the incident prior to have taken place as if in course of same transaction. The Doctor conducting the autopsy over the dead body of Gura has noted one lacerated JCRLA No.87 of 2008 Page 9 of 18 injury on the dead body of Gura with a subcutaneous haematoma present on the right tempro parietal bone. He does not state that the head injury caused, which he noticed is not the result of one blow but more than that being caused successively. 12. In case of Mahesh Balmiki -V- State of Madhya Pradesh; (2000) 1 SCC 319, the Apex Court while deciding the question of whether a single blow with a knife on the chest of the deceased would attract section 302 IPC, held thus:- “9….. there is no principle that in all cases of a single blow Section 302 I.P.C. is not attracted. Single blow may, in some cases, entail conviction under Section 302 I.P.C., in some cases under Section 304 I.P.C and in some other cases under Section 326 I.P.C. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him. In the instant case, the deceased was disabled from saving himself because he was held by the associates of the appellant who inflicted though a single yet a fatal blow of the description noted above. These facts clearly establish that the appellant had intention to kill the deceased. In any event, he can safely be attributed knowledge that the knife blow given by him is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death.” JCRLA No.87 of 2008 Page 10 of 18 13. In case of Dhirajbhai Gorakhbhai Nayak V. State of Gujarat, (2003) 9 SCC 322, the Apex Court while discussing the ingredients of Exception 4 of Section 300 IPC, held thus:- “The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of first prosecution(sic provocation) not covered by the exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men’s sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A ’sudden fight’ implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight (c) without the offenders JCRLA No.87 of 2008 Page 11 of 18 having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the ’fight’ occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression ’undue advantage’ as used in the provision means ’unfair advantage’. 14. In case of Pulicherla Nagaraju V. State of Andhra Pradesh; (2006) 11 SCC 444, the Apex Court while deciding whether a case falls under section 302 or 304 Part I or 304 Part II IPC, held thus:- “Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be JCRLA No.87 of 2008 Page 12 of 18 cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (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 force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre- meditation; (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 for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may.” there may be several other 15. In case of Singapagu Anjaiah V. State of Andhra Pradesh, Air Online 2010 SC 441, the Apex Court while deciding the question whether a blow on the skull of the deceased with a crowbar would attract Section 302 IPC, held thus:- “In our opinion, as nobody can enter into the mind of the accused, its intention has to be gathered from the weapon used, the part of the body chosen for the assault and JCRLA No.87 of 2008 Page 13 of 18 the nature of the injuries caused. Here, the appellant had chosen a crow bar as the weapon of offence. He has further chosen a vital part of the body i.e. head for causing the injury which had caused multiple fractures of skull. This clearly shows the force with which the appellant had used the weapon. The cumulative effect of all these factors irresistibly leads to one and the only conclusion that the appellant intended to cause death of the deceased.” 16. In case of State of Rajasthan through the Secretary -V- Kanhaiya Lal, (2019) 5 SCC 639, the Apex Court in paras 7.3, 7.4 and 7.5 held as follows:- “Arun Raj (Supra) this Court observed and held that there is no fixed rule that whenever a single blow is inflicted, Section 302 would not be attracted. It is observed and held by this Court in the aforesaid decision that nature of weapon used and vital part of the body where blow was struck, prove beyond reasonable doubt the intention of the accused to cause death of deceased. It is further observed and held by this Court that once these ingredients are proved, it is irrelevant whether there was a single blow struck or multiple blows.” “In the case of Ashokkumar Magabhai Vankar (Supra), the death was caused by single blow on head of the deceased with a wooden pestle. It was found that the accused used pestle with such force that head of the deceased was broken into pieces. This Court considered whether the case would fall under Section 302 or Exception 4 of Section 300 of the IPC. It is held by this Court that the injury sustained by deceased, not only exhibits intention of accused in causing death of victim, but also knowledge of accused in that regard. It is JCRLA No.87 of 2008 Page 14 of 18 further observed by this Court that such attack could be none other than for causing death of victim. It is observed that any reasonable person, with any stretch of imagination can come to conclusion that such injury on such a vital part of the body, with such a weapon, would cause death.” “A similar view is taken by this Court in the recent decision in the case of Leela Ram and after considering catena of decisions of this Court on the issue on 9 hand i.e. in case of a single blow, whether a case falls under section 302 or section 304 Part I or section 304 Part II, this Court reversed the judgment of the High Court (in that case also the impugned was from the Rajasthan High Court) and convicted the accused for the offence under section 302 of the IPC. In the same decision, this Court also considered Exception 4 of Section 300 of the IPC and observed in paragraph 21 as under: judgment "Under Exception 4, culpable homicide is not murder if the stipulations contained in that provision are fulfilled. They are : (i) that the act was committed without premeditation; (ii) that there was a sudden fight; (iii) the act must be in the heat of passion upon a sudden quarrel; and (iv) the offender should not have taken undue advantage or acted in a cruel or unusual manner. " 17. In case of Bavisetti Kameswara Rao @ Babai -V- State of Andhra Pradesh represented by its Public Prosecutor, High Court of Andhra Pradesh; (2008) 15 SCC 725, the Apex Court has observed as under:- “13. It is seen that where in the murder case there is only a single injury, there is always a tendency to advance an JCRLA No.87 of 2008 Page 15 of 18 argument that the offence would invariably be covered Under Section 304 Part II Indian Penal Code. The nature of offence where there is a single injury could not be decided merely on the basis of the single injury and thus in a mechanical fashion. The nature of the offence would certainly depend upon the other attendant circumstances which would help the court to find out definitely about the intention on the part of the Accused. Such attendant circumstances could be very many, they being (i) whether the act was premeditated; (ii) the nature of weapon used; (iii) the nature of assault on the Accused. This is certainly not an exhaustive list and every case has to necessarily depend upon the evidence available. As regards the user of screwdriver, the learned Counsel urged that it was only an accidental use on the spur of the moment and, therefore, there could be no intention to either cause death or cause such bodily injury as would be sufficient to cause death. Merely because the screwdriver was a usual tool used by the Accused in his business, it could not be as if its user would be innocuous.” 14. In State of Karnataka v. Vedanayagam this Court considered the usual argument of a single injury not being sufficient to invite a conviction Under Section 302 Indian Penal Code. In that case the injury was caused by a knife. The medical evidence supported the version of the prosecution that the injury was sufficient, in the ordinary course of nature to cause death. The High Court had convicted the Accused for the offence Under Section 304 Part II Indian Penal Code relying on the fact that there is only a single injury. However, after a detailed discussion regarding the nature of injury, the part of the body chosen by the Accused to inflict the same and other attendant circumstances and after discussing Clause Thirdly of Section 300 Indian Penal Code and further relying on the JCRLA No.87 of 2008 Page 16 of 18 decision in Virsa Singh v. State of Punjab the Court set aside the acquittal Under Section 302 Indian Penal Code and convicted the Accused for that offence. The Court (in Vedanayagam case relied on the observation by Bose, J. in Virsa Singh case to suggest that: “16. ... With due respect to the learned Judge he has linked up the intent required with the seriousness of the injury, and that, as we have shown, is not what the Section requires. The two matters are quite separate and distinct, though the evidence about them may sometimes overlap.” 18. The accused is a member of Scheduled Tribe and hails from Scheduled Area of the State, Judicial notice of the fact can be taken that their temper usually run high and behaviour often even for silly reasons seen as abnormal and totally unexpected. 19. Applying the laid down in the aforesaid decisions more particularly the decisions on the single injury to the facts and circumstances of the case as have emerged in evidence and afore- discussed, we are of the considered view that the offence could be properly categorized as one punishable under section 304 Part-I of the IPC. We are thus of the considered opinion that for the role played and act done by the accused, he would be liable for conviction under section 304 Part-I of the IPC. In that view of the matter, the conviction of the accused is altered to one under section 304 Part-I of the IPC and we are told at the Bar that the accused has undergone custody for about nine years. We, therefore, are of the considered opinion that at this JCRLA No.87 of 2008 Page 17 of 18 distance of time when the accused by now has been enjoying liberty for 13 years, sentencing the accused to the period undergone, would serve the end of justice and meet its end. 20. With the above modification as to the judgment of conviction and order of sentence dated 9th November, 2016 & 10th November, 2016 respectively passed by the learned Ad hoc Additional Sessions Judge (F.T.), Champua in S.T. Case No.41/148
Decision
of 2005, the Appeal stands disposed of. V. Narasingh, J. I Agree. (D. Dash), Judge. (V. Narasingh), Judge. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASST. REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 16-Apr-2024 14:39:42 JCRLA No.87 of 2008 Page 18 of 18