The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK JCRLA No.6 Of 2021 An appeal from judgment and order dated 19.10.2020 passed by the Additional Sessions Judge, Paralakhemundi in S.T. Case No.16 of 2019. ---------------------------- Biswanath Sabar ....... Appellant State of Odisha ....... Respondent -Versus- For Appellant: - Mr. Debendra Narayan Pattanaik Amicus Curiae For Respondent: - Mr. Manoranjan Mishra Addl. Standing Counsel ---------------------------- P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO --------------------------------------------------------------------------------------------------- Date of Hearing and Judgment: 16.08.2023 --------------------------------------------------------------------------------------------------- S.K. SAHOO, J. The appellant Biswanath Sabar faced trial in the Court of learned Additional Sessions Judge, Paralakhemundi in S.T. Case No.16 of 2019 for commission of offence punishable under section 302 of the Indian Penal Code (hereinafter 8I.P.C.9) on the accusation that on 01.01.2019 at about 3.30 p.m. at // 2 // village Krushnapur under Serango police station, he committed murder of informant9s father, namely, Rabi Sabar (hereinafter 8deceased9) by assaulting him with a sharped 8kati9 intentionally with the knowledge that death would be caused by such assault. The learned trial Court vide impugned judgment and order dated 19.10.2020 has been pleased to hold the appellant guilty under section 304 Part-I of the I.P.C. and sentenced him to undergo R.I. for seven years and to pay a fine of Rs.2,000/- (rupees two thousand), in default, to suffer R.I. for a further period of six months. The Prosecution Case: The prosecution case, as per the first information report (hereinafter 8F.I.R.9) lodged by Puspanjali Bhuyan (P.W.4), the daughter of the deceased, in short, is that on 01.01.2019 during day time, on the eve of New Year, the villagers of Kujasingh, Seranga, Gajapati were organizing a feast in village Krushnapur. The deceased was engaged in repairing the fence and the informant invited him to attend the feast through her brother Jagannath Sabar (P.W.11). While P.W.11 and the deceased were coming together to attend the feast, on the way, the appellant on account of previous dispute assaulted the deceased by means of a sharped 8kati9 on the back of his left leg. Page 2 of 24 // 3 // Hearing the shout of the deceased as well as P.W.11, the villagers rushed to the spot and seeing them, the appellant decamped from the spot and the deceased was found to have sustained serious bleeding injuries on the leg for which he was immediately shifted to the District Headquarters Hospital, Paralakhemundi. While undergoing treatment at the hospital, the deceased succumbed to his injuries at about 8.00 p.m. The report was presented by P.W.4 on 02.01.2019 before the Inspector in-charge of Rayagada police station and accordingly, Rayagada P.S. Case No.01 dated 02.01.2019 was registered under section 302 of the I.P.C. against the appellant. On registration of the case, the Inspector in-charge directed P.W.15 Karunakar Sahu, who was attached to Rayagada police station as S.I. of Police, to take up investigation of the case. During course of investigation, P.W.15 examined the informant (P.W.4), took steps for guarding the dead body of the deceased and visited the spot, examined material witnesses, arrested the appellant on 03.01.2019. On the basis of the statement of the appellant, the weapon of offence i.e. sharp cutting 8kati9 was recovered from a paddy bag and it was seized in the presence of the witnesses. The appellant was sent for medical examination, inquest over the dead body was conducted Page 3 of 24 // 4 // and it was sent for post mortem examination. P.W.15 received the post mortem report and he made a query to the doctor conducting post mortem examination regarding possibility of injury with the weapon seized at the instance of the appellant and received the report. The wearing apparels of the appellant were also seized and the charge of investigation was handed over on 30.03.2019 to P.W.21 Ratnanidhi Patra, who was also the S.I. of Police attached to Rayagada police station. P.W.21 also revisited the spot, reexamined the witnesses and received the sanction order from the Collector, Gajapati, Paralakhemundi and on completion of investigation, found prima facie evidence against the appellant and accordingly, submitted charge sheet under section 302 of the I.P.C. and section 25(1)(a) of the Arms Act, 1959 against the appellant. After submission of charge sheet, the case was committed to the Court of Sessions for trial after observing due committal procedure, where the learned trial Court on 17.07.2019 framed charge against the appellant under section 302 of the I.P.C. and since the appellant refuted the charges, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. Page 4 of 24 // 5 // Witnesses & Exhibits: During course of trial, in order to prove its case, the prosecution has examined as many as twenty one witnesses. P.W.1 Surendra Sabar, who is a co-villager of the appellant, P.W.2 Laxmi Sabar, P.W.11 Jagannath Sabar, who is the son of the deceased and P.W.19 Dibakar Sabar are the eye witnesses to the occurrence. They have supported the prosecution case. P.W.3 Sudam Sabar is a witness to the seizure of one blue colour half pant and one V cut blue colour T-shirt of the appellant as per seizure list Ext.1. P.W.4 Puspanjali Bhuyan is the informant in the case and the daughter of the deceased. She supported the prosecution case and narrated the incident. P.W.5 Sandhyarani Sabar @ Padhi is the younger sister of the informant (P.W.4) and the daughter of the deceased, who supported the prosecution case and she is also a witness to the inquest (Ext.4). P.W.6 Harihar Biswal is a witness to the seizure of blood stained earth and cloth and one kati with wooden handle as per seizure lists marked as Ext.6 and Ext.7 respectively. Page 5 of 24 // 6 // P.W.7 Debendranath Padhy is the son-in-law of the deceased and also a witness to the inquest. P.W.8 Susila Sabar is the niece of the deceased and also a witness to the inquest.
Legal Reasoning
P.W.9 Smt. Lajani Sabar is the mother of the informant and widow of the deceased. She supported the prosecution case. P.W.10 Mohan Sabar is the brother of the informant and son of the deceased who stated that at the time of occurrence, he was not present in the house and he received telephonic information about the incident. P.W.12 Bishnu Sabar is the younger sister of the informant and daughter of the deceased who stated that at the time of occurrence, she was not present in the house and she received telephonic information about the incident. P.W.13 Kuri Sabar is the younger sister of the informant and daughter of the deceased. She supported the prosecution case. Page 6 of 24 // 7 // P.W.14 Bhagaban Sabar is a post occurrence witness and he has stated that upon hearing the hullah, he rushed to the spot and found the appellant assaulting the deceased. P.W.15 Karunakar Sahu was working as S.I. of Police of Rayagada police station, who is the first Investigating Officer in the case. On 30.03.2019, he handed over the charge of investigation to Ratnanidhi Patra (P.W.21) after attaining superannuation. P.W.16 Dr. Srikant Sahoo was posted as the O. & G. Specialist at D.H.H., Parlakhemundi who conducted the post mortem examination over the dead body of the deceased on police requisition and proved the post mortem report vide Ext.13. P.W.17 Sanjib Kumar Paika and P.W.18 Fakir Bhuyan were the home guards attached to Rayagada police station who were present at the time of post mortem over the dead body of the deceased. P.W.20 Kamaraju Sabar did not support the prosecution case for which he was declared hostile by the prosecution. Page 7 of 24 // 8 // P.W.21 Ratnanidhi Patra was the S.I. of Police attached to Rayagada police station, who is the second Investigating Officer in the case. The prosecution exhibited thirteen numbers of documents. Ext.1 is the seizure list of one blue colour half pant and one V cut blue colour T-shirt of the appellant, Ext.2 is the F.I.R., Ext.3 is the receipt for receiving dead body, Ext.4 is the inquest report, Ext.5 is the dead body challan, Ext.5/2 is the application for autopsy, Ext.6 is the seizure list of blood stained earth, Ext.7 is the seizure list of one sharp cutting kati, Ext.8 is the spot map, Ext.9 is the requisition for medical examination of the appellant, Ext.10 is the seizure list of one striped red colour blood stained gamuchha, one red striped blood stained T-shirt and one blood stained blue and grey colour painted lungi of the deceased, Ext.11 is the query report, Ext.11/1 is the requisition report, Ext.12 is the requisition for chemical examination, Ext.12/2 is the receipt of R.F.S.L., Berhampur and Ext.13 is the post mortem report. The prosecution also proved five material objects. M.O.I is the weapon of offence, M.O.II is the wearing apparels of Page 8 of 24 // 9 // the appellant, M.O.III is the sample earth, M.O.IV is the blood stained earth and M.O.V is the red stripped blood stained towel. No witness was examined on behalf of the defence. The defence plea of the appellant is one of denial and it is stated that on the date of occurrence at about 4.00 p.m., while he was returning home from his work, police arrested him and implicated him in a false case. He further stated that he had no dispute with the deceased prior to the occurrence. Findings of the Trial Court: The learned trial Court after assessing the oral as well as documentary evidence on record has been pleased to hold that though the weapon of offence was not produced before the doctor who conducted post mortem examination but his report is based on scientific reason. It was further held that the injury which was caused on the deceased did not cause instantaneous death and it was not on the vital part of the body and it was not likely in all probabilities to cause death. It was held that such an injury does not exhibit the intention of the attacker in causing death of the deceased but it shows the knowledge of the attacker as to the likely consequence of such attack which could be nothing other than causing death. It was Page 9 of 24 // 10 // further held that so far as knowledge is concerned, it can be attributed that the appellant was having enough knowledge of the act he committed so also its consequences and the intention to commit the same can be gathered from the attending general circumstances of the case. It was further held that from the attending circumstances, it can be well presumed that ill-will was existing between them previously and the act of the appellant was the outcome of challenge put by the deceased. Ill-will and premeditation should be present to attract culpability for the offence of murder and in the present case, there is, of course, ill- will but obviously no premeditation. Learned trial Court seems to have relied on the confidential report of the Investigating Officer and has been pleased to hold that there is lack of positive evidence to show that there was grave and sudden provocation at or about the time of occurrence, but relying on the confidential report, it was held that the act of the appellant has direct nexus from which it can safely held that the appellant with the intention of causing death had inflicted a blow by means of a sharp edged kati with the knowledge that in all probabilities, considering the age of the deceased, it will cause death and accordingly, it was held that the appellant is responsible for Page 10 of 24 // 11 // committing culpable homicide not amounting to murder and convicted him under section 304 Part-I of the I.P.C. Contentions of the Parties: Mr. Debendra Narayan Pattanaik, learned Amicus Curiae for the appellant contended that though it is the informant9s case that the F.I.R. was scribed at the police station on her dictation but on the body of the F.I.R., the name of the scribe is not there so also his endorsement. On the other hand, P.W.15, the first Investigating Officer has stated that P.W.4 presented a written report before the Inspector in-charge K.K. Murmu. Learned counsel further submitted that in view of the part of the body where the assault was made and the nature of injury caused, it cannot be said that it is a case of culpable homicide not amounting to murder and therefore, the conviction of the appellant under section 304 Part-I of the I.P.C. is not proper. It is further argued that the appellant was taken into judicial custody on 03.01.2019 and he was never released on bail during trial and during pendency of the appeal. Therefore, it was submitted that he has already undergone substantive sentence of four years and seven months and it may be a case under section 326 of the I.P.C. and the sentence of the appellant may be reduced to the period already undergone. Page 11 of 24 // 12 // Mr. Manoranjan Mishra, learned Additional Standing Counsel appearing for the State of Odisha, on the other hand, supported the impugned judgment and contended that the doctor (P.W.16) has specifically stated that the cause of death of the deceased was due to hypovolemic shock as a result of severe haemorrhage from a wound on left side leg and the impact of the assault was such that it caused rupture of calf muscle and neuro- vascular bundle and fracture of shaft of fibula. Learned counsel submitted the weapon of offence was a 8kati9 and it was recovered at the instance of the appellant from a hidden place basing upon the statement of the appellant and the weapon was sent for chemical analysis and the chemical examination report indicates that human blood was found on it. Learned counsel further submitted that the eye witnesses are consistent that it is the appellant who assaulted the deceased on the back of his leg causing injury and the deceased was immediately shifted to the D.H.H., Paralakhemundi but in spite of the treatment, he died on the very day and the evidence of the eye witnesses have not been shaken at all in the cross-examination and therefore, the jail criminal appeal being devoid of merit should be dismissed. Page 12 of 24 // 13 // Analysis of Evidence: Adverting to the contentions raised by the learned counsel for the respective parties, it appears that there are number of eye witnesses to the occurrence and one of the most important eye witness is none else than the son of the deceased, who has been examined as P.W.11 and he stated that on the date of occurrence i.e. 01.01.2019, a village feast was organized on the eve of New Year and after cooking was over at about 2.30 p.m., he came to call the deceased on being asked by his sister (P.W.4) and while they were coming to the place of feast, on the way, the appellant started quarrelling with the deceased and in the process, gave a 8kati9 blow to the left leg of the deceased from the backside causing serious bleeding injury. He himself so also the deceased shouted for help for which the co-villagers rushed to the spot and tied the injured body part with a piece of cloth and took the deceased to his house and then an ambulance was called which came late and the deceased was taken to D.H.H., Paralakhemundi for his treatment but during treatment at about 8.00 to 8.30 p.m., he died. In the cross-examination, no question has been put as far as assault on the deceased is concerned except that the deceased had not been inflicted any Page 13 of 24 // 14 // injury above the waist. The evidence of P.W.11 has remained unchallenged. The other eye witnesses to the occurrence are P.W.1, P.W.2 and P.W.19. P.W.1 has also stated about the assault made by the appellant by means of a 8kati9 to the back of the leg of the deceased causing serious bleeding injury and in the cross- examination, it has been elicited that the deceased was an old man aged about sixty years. Nothing further has been elicited in the cross-examination. P.W.2 is another eye-witness, who has also stated about the deceased being assaulted by the appellant on his leg from the backside by means of a 8kati9 causing profuse bleeding. She also deposed that after causing the assault, the appellant fled away from the spot and the deceased was taken to D.H.H., Paralakhemundi where he succumbed to the injury. He has denied the suggestion made by the learned defence counsel that the deceased died due to heart problem and not due to the assault of the appellant. P.W.19 has specifically stated that there was a village feast and the deceased was coming to attend the same from his agricultural land when the appellant suddenly assaulted Page 14 of 24 // 15 // him from his back on his leg by means of a 8kati9 causing profuse bleeding and ultimate death during treatment and that he has seen the occurrence. In the cross-examination, it has been elicited that the deceased was an old man and he was not having any heart problem before the incident. Therefore, on a conjoint reading of the evidence of all these eye witnesses i.e. P.W.11, P.W.1, P.W.2 and P.W.19, it appears that while the deceased was coming to the place of feast on being called by P.W.11, on the way, the appellant quarrelled with him and during such quarrel, he assaulted the deceased on the backside of his left leg by means of a 8kati9 and ran away from the spot. The evidence of the I.O. (P.W.15) indicates that after the appellant was arrested, at his instance, the weapon of offence i.e. sharp cutting 8kati9 was recovered from a paddy bag and it was seized in presence of the independent witnesses and it was sent to R.F.S.L., Berhampur and the opinion has been given that the 8kati9 was having human blood stain of Group 8B9. The wearing apparel i.e. a blue colour T-shirt of the appellant was also seized and upon chemical examination, the same was found to contain human blood of Group 8B9. Page 15 of 24 // 16 // The doctor, who conducted post mortem examination, has been examined as P.W.16 and stated that he noticed one injury of size 6 inch x 3 inch on the left side leg and he opined the cause of death was due to hypovolemic shock as a result of severe haemorrhage from a wound with rupture of calf muscle and neuro-vascular bundle and fracture of shaft of fibula. The doctor has further opined that the injury might have been caused by sharp and heavy instrument and he has proved the post mortem report marked as Ext.13. He has denied the suggestion given by the learned defence counsel that the deceased died due to failure of heart. The doctor has also stated that the weapon of offence was not produced before him, however, he stated that the nature of injury was sufficient to cause death in all probabilities. On perusal of Ext.13, the post mortem report, it appears that there is no mention that the injury was sufficient in the ordinary course of nature to cause death. From the evidence adduced by the prosecution, it appears that the author of the injury on the deceased is none else than the appellant and the injury was caused with a sharp cutting weapon i.e. 8kati9 and as a result of the injury sustained on the left leg, there was rupture of Page 16 of 24 // 17 // calf muscle and neuro-vascular bundle and fracture of shaft of fibula. Whether the appellant commited culpable homicide: Now the question comes for consideration as to whether the order of conviction passed by the learned trial Court under section 304 Part-I of the I.P.C. is justified or it would be a case of voluntarily causing grievous hurt by dangerous weapons punishable under section 326 of the I.P.C. as contended by the learned Amicus Curiae for the appellant. Culpable homicide has been defined under section 299 of the I.P.C. which reads as follows: “Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide." A careful perusal of the above provision manifests that if a person causes death of another person by doing an act (a) with the intention of causing death; or (b) with the intention of causing such bodily injury as is likely to cause death; (c) with the knowledge that such act is likely to cause death, then he can said to have committed 8culpable homicide9. 8Intent9 and Page 17 of 24 // 18 // 8knowledge9 are the key ingredients of section 299 which postulate the existence of a positive mental attitude and this mental condition is the 8mens rea9, the existence of which is a sine qua non for commission of the offence. Section 300 of I.P.C. provides that culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death or if it falls under any of the four clauses as mentioned in the said section. However, if it falls under any of the five exceptions enumerated under the said section, it would be 8culpable homicide not amounting to murder9, which is punishable either under section 304 Part-I or 304 Part-II of the I.P.C. If the accused had the intention to cause such bodily injury as is likely to cause death, the offence committed is punishable under section 304 Part-I of the I.P.C. and if the accused had no intention but had the knowledge that the act done is likely to cause death or to cause such bodily injury as is likely to cause death, it would be punishable under section 304 Part-II of the I.P.C. In the case in hand, prior to the assault, the evidence on record indicates that there was a quarrel between Page 18 of 24 // 19 // the appellant and the deceased and even though the appellant was armed with an weapon like 8kati9 but he has not assaulted on any vital part of the body rather gave a single blow on the back of the left leg and fled from the spot. No doubt, such injury has caused rupture of calf muscle and neuro-vascular bundle and fracture of shaft of fibula but by causing such injury, it cannot be said that the act was done with the intention of causing such bodily injury as is likely to cause death of the deceased. The Court cannot lose sight of the fact that though the doctor, who has conducted the post-mortem on the deceased, deposed that the nature of injury was sufficient to cause death in all probabilities, but he has not mentioned the same in the post- mortem report (Ext.13). A medical expert has a great responsibility in a criminal trial and therefore, he should be careful and consider the pros and cons of the case and draw his conclusions correctly and logically and should not leave to mention any important aspect in the preparation of the report. His omissions during the preparation and making a statement in that respect during trial which may happen after a considerable period shall raise question mark on it. When the appellant was having a weapon like 8kati9, there was every scope and Page 19 of 24 // 20 // opportunity for him to cause more injuries on any vital part of the body but he has not done the same. It is a settled and celebrated principle of criminal law that an assailant cannot be held guilty of the crime allegedly committed by him unless it is proved that he had a 8guilty mind9 while committing the said act. Culpability for crime is attracted when both 8actus reus9 and 8mens rea9 are palpably present and absence of any of the two elements may result in a fatal blow to the prosecution case. It is pertinent to cite the Latin maxim 8actus non facit reum nisi mens sit rea’ which can be loosely translated as mere doing of an overt act is not sufficient to commit a crime unless the culprit possesses the guilty intention to do the same. In the case of Parusuraman @ Velladurai and others -Vrs.- State of Tamil Nadu reported in A.I.R. 1993 Supreme Court 141, where the participation of the accused in the occurrence which resulted in death of one person had been proved beyond doubt and thirteen injuries were found on the dead body of deceased out of which eleven were on lower legs and arms, it was held that intention of the accused was to cause grievous hurt and as such the offence committed by them would come within the parameters of section 325 of the I.P.C. Page 20 of 24 // 21 // In the case of Moti Lal -Vrs.- State of Madhya Pradesh reported in A.I.R. 1994 Supreme Court 1544, the appellant therein inflicted only one injury with an axe and since it was not found to be sufficient, in ordinary course, to cause death, it was held that the conviction could have been one under section 326 of the I.P.C. as the injury was caused with deadly weapon like axe and the injury was likely to endanger life and accordingly, the conviction of the appellant under section 304 Part-I of the I.P.C. was set aside and he was convicted under section 326 of the I.P.C. In the case of Satwarg Singh -Vrs.- State of Punjab reported in 1994 (2) Crimes 621, it was held that when the accused had not repeated the blow and had caused only one injury on the left leg of the victim with a 8kulhari9, it cannot be said that the accused had even the remote knowledge that the injury with a 8kulhari9 on the lower portion of the leg of the victim would result in his death and accordingly, the conviction of the accused under section 304 Part-II of the I.P.C. was altered to one under section 326 of the I.P.C. Similarly, in the case of Dashrath Singh v. State of U.P. reported in (2004) 7 Supreme Court Cases 408, the Hon9ble Supreme Court had the occasion to adjudicate upon a Page 21 of 24 // 22 // matter where the accused had inflicted a single blow on the deceased9s head with a kanta. The Court was of the considered view that absence of multiple blows indeed points towards lack of intention on the part of the accused to kill the deceased. Had there been such intention, he would not have refrained from striking the blows after the very first blow itself. Accordingly, his conviction was altered from one under section 302 to under section 326 of the I.P.C. Conclusion: In view of the foregoing discussions, when the evidence on record indicates that during quarrel between the appellant and the deceased, the appellant dealt a single blow by means of a 8kati9 on the backside of the left leg of the deceased, which is no doubt caused grievous hurt and the weapon used is also a dangerous weapon but the materials are lacking to bring the act of the appellant within the 8culpable homicide9 as it cannot be said that the appellant had even remote knowledge that the injury with 8kati9 on such a part of the body would result in the death of the deceased. I am of the humble view that it would not be a case under section 304 Part-I of the I.P.C., rather it would be a case under section 326 of the I.P.C. and accordingly, the conviction of the appellant is altered from Page 22 of 24 // 23 // section 304 Part-I of the I.P.C. to one under section 326 of the I.P.C. part. In the result, the Jail Criminal Appeal is allowed in It appears that the appellant was taken into judicial custody in connection with this case on 03.01.2019 and neither he was released on bail by the trial Court nor he was granted bail by this Court during pendency of the Jail Criminal Appeal and thus, he has already undergone substantive sentence of four years and seven months. The sentence of the appellant from R.I. for seven years is reduced to the period already undergone and in view of the poor financial condition of the appellant, no fine amount is imposed. The appellant be set at liberty forthwith, if his detention is not required in any other case. Trial Court records with a copy of this judgment be communicated to the concerned Court forthwith for information and necessary action. Before parting with the case, I would like to put on record my appreciation to Mr. Debendra Narayan Pattanaik, the learned Amicus Curiae for rendering his valuable help and assistance towards arriving at the decision above mentioned. The learned Amicus Curiae shall be entitled to his professional fees Page 23 of 24 // 24 // which is fixed at Rs.7,500/- (rupees seven thousand five hundred only). This Court also appreciates the valuable help and assistance provided by Mr. Manoranjan Mishra, learned Additional Standing Counsel. …………………………… S.K. Sahoo, J. Orissa High Court, Cuttack The 16th August 2023/RKMishra Signature Not Verified Digitally Signed Signed by: RABINDRA KUMAR MISHRA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Aug-2023 14:07:35 Page 24 of 24