The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No. 456 of 2017 From judgment dated 30.04.2012 passed in S.T. Case No. 77/88 of 2010 (arising out of G.R. Case No. 995/2010 of learned S.D.J.M., Jharsuguda). Subash Khadia --------------- ...… -Versus- Appellant State of Odisha ...…. Respondent Advocate(s) appeared in this case :- _______________________________________________________ For Appellant : M/s. R.K. Das, S.K. Samantara, G.N. Parida, Advocates For Respondent : Mr. S.S. Kanungo, Addl. Government Advocate _______________________________________________________ CORAM: MR. JUSTICE D. DASH MR. JUSTICE SASHIKANTA MISHRA DATE OF HEARING:-09.03.2023 DATE OF JUDGMENT:-27.03.2023 SASHIKANTA MISHRA, J. The appellant questions the correctness of the judgment of conviction and sentence passed by the Ad- hoc Additional District and Sessions Judge (FTC), Jharsuguda in S.T. Case No.77/88 of 2010 whereby, Page 1 of 13 being convicted for the offence under Section 302 of I.P.C., he was sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default, to undergo further R.I. for four months. 2. The prosecution case, sans unnecessary details is as follows:- One Rupabati Sahoo (informant) lodged F.I.R. before Banharpalli Police Station in the district of Jharsuguda on 10.07.2010 stating therein that on that day in between 7.00 p.m. to 8.00 p.m. while her husband (deceased) was sitting on the outer courtyard of their house, the accused-appellant uprooted a banyan tree planted earlier by the deceased due to which there was an altercation between them as the deceased rebuked the accused for such act. The accused being enraged went inside his house and came back holding an axe with which he dealt a blow on the neck of the deceased causing him to fall down in a pool of blood. Though the informant and her son-in-law Chagala Sahu tried to restrain the accused in committing the act, they could not. The accused left the spot after abusing the informant. Page 2 of 13 Thereafter, the informant and her son-in-law called the neighbours who rushed to the spot and also saw the accused standing on the road holding the axe. The deceased was shifted to the hospital but was declared dead by the Doctor. The above complaint was registered as Banharpalli P.S. Case No.16(3) dated 10.07.2010 under Section 302 of I.P.C. which was followed by investigation. Upon completion of investigation, charge sheet was submitted against the accused also under Section 302 of I.P.C. 3. 4. The accused took the plea of denial. To prove its case, prosecution examined eleven witnesses of whom, P.W.1 is the informant and eyewitness to the occurrence. P.W. 2 is the son of the informant and the deceased. P.W.3 is the daughter-in-law of the deceased who is a post-occurrence witness. P.W.4 is also the daughter-in-law of the deceased and a post occurrence witness. P.W. 5 is a seizure witness. P.Ws. 6 and 7 are witnesses to the recovery of the weapon of offence. P.W.8 is another son of the deceased. P.W.9 is the autopsy Page 3 of 13 surgeon. P.W.10 is another doctor who had examined the biological samples. P.W. 11 is the IO. Besides, prosecution exhibited sixteen documents and proved five materials objects. 5. Be it noted that charge was framed by the trial court under Sections 302 of IPC and 427 of IPC as it was alleged that apart from killing the deceased, the accused had also damaged the plastic chair by axe blows on which the deceased was sitting. 6. Defence did not adduce any evidence, either oral or documentary. Upon appreciation of the evidence on record,
Legal Reasoning
the trial court first held that the evidence clearly reveals that the death of the deceased was homicidal in nature. As regards authorship of the crime, the trial court, after analyzing the evidence of P.Ws. 1, 2, 3 and 4 coupled with the evidence of the official witnesses held that the dominant intention of the accused to commit the murder of the deceased had developed after he was rebuked by the deceased for uprooting the small banyan tree planted by him and therefore, it was held that he had intention Page 4 of 13 the cause death of the deceased. As such, the trial court held the prosecution to have successfully established the case under Section 302 of I.P.C. and convicted him thereunder. However, the trial court found no evidence to prove the charge under Section 427 of IPC. Further, considering the nature of the occurrence, the trial court sentenced the convict to imprisonment for life with fine of Rs.5,000/-, in default to undergo for R.I. for four months. 7.
Legal Reasoning
Heard Mr. R.K. Das, learned counsel for the convict-appellant and Mr.S.S. Kanungo, learned Additional Government Advocate for the State. 8. Mr. Das submits that though several grounds to challenge the impugned judgment had been taken in the memorandum of appeal, yet the appellant would like to confine his challenge only to the finding of the trial court regarding guilt of the accused under Section 302 of I.P.C. as also the sentence imposed thereunder. In this regard, Mr. Das would argue that even accepting the prosecution evidence as it is, no case of murder within the meaning of Section 300 of I.P.C. is made out inasmuch as the evidence only shows that the incident in question had Page 5 of 13 occurred out of a sudden quarrel without any premeditation on the part of the appellant to cause the death of the deceased. According to Mr. Das therefore, this is a case covered under the Exception-4 of Section 300 of IPC. On such ground Mr. Das also argues that the sentence of imprisonment for life cannot be sustained. 9. Per contra, Mr. Kanungo has supported the reasoning adopted by the trial court and submits that it is borne out from the evidence on record that the accused had an altercation with the deceased and thereafter went to his house specifically to bring the weapon of offence (axe) with which he assaulted the deceased. According to him, it is a clear case of acting with premeditation and therefore, the finding of the trial court in this regard does not warrant any interference. 10. Since the order of conviction as such is not challenged but the appellant’s grievance is only with regard to the offence for which he has been convicted, it would suffice to refer to the evidence to such extent only. In this regard, it is in the evidence of the sole eyewitness P.W.1 (informant) that the accused uprooted a small Page 6 of 13 banyan tree planted by the deceased for which the latter rebuked him and then the accused went to his house situated nearby and came to the spot with an axe with which he dealt a blow on the left side of the neck of the deceased who fell down in a pool of blood. The accused left the spot thereafter brandishing the axe and threatening other persons from coming near him. In cross- examination, P.W. 1 stated that she had heard the altercation between the accused and the deceased and that when the accused uprooted the banyan tree, the deceased rebuked him saying “Sala Magiha” etc, for which the accused became enraged. According to P.W.1, the assault was also witnessed by her son-in-law Chagala Sahu. The said Chagala Sahu was examined as P.W.4 and stated that at the relevant time, he was present in the house of the deceased and on hearing the cry of the deceased, he rushed near him and saw that there was profound bleeding from his left side neck and the accused was going away with an axe. Further, the accused had also shown his axe to him and P.W.1 in a threatening manner. P.Ws. 2 and 3 are post occurrence witnesses. Page 7 of 13 From a conjoint reading of the versions of the P.Ws. 1 and 4, it is apparent that the assault was preceded by an altercation between the accused and the deceased. While prosecution wants the court to believe that such altercation was related to the uprooting of the banyan tree by the accused yet, if the following statement of P.W.1 in cross-examination is considered, it presents a slightly different story. “xxx xxx xxx At the time of occurrence the deceased was sitting in the open court-yard having cement floors. After my husband took a chair from our house and sat on the same in the court- yard I came there about five minutes thereafter. I had heard the altercation between the accused and the deceased. When the accused uprooted our banyan the deceased rebuked him saying “Sala Maghia etc for which the accused became enraged. I was standing near the deceased when the accused subsequently came with an axe and dealt a blow on his neck xxx xxx xxx” tree, (Emphasis supplied) 11. The above statements clearly suggest that the altercation was due to some other reason followed by uprooting of the tree by the accused. At this juncture, the deceased abused the accused using obscene words due to which the latter became enraged. This is thus, a case where there was verbal quarrel, for whatever reason, Page 8 of 13 between the accused and the deceased in course of which, the accused uprooted the banyan tree. When the deceased abused him for such act he became enraged and went to his house and came back holding the axe with which he dealt a blow on the neck of the deceased. Two things are apparent, one, there was some quarrel and altercation which led the accused to uproot the banyan tree and second, the same prompted the deceased to abuse him using obscene words hearing which he became enraged. Till such time, there was no attempt by the accused to assault the deceased even though the altercation was going on for some time. But when the deceased abused him using obscene language he became enraged and left for his home and came with the axe to assault the deceased. Thus, the abuse by the deceased using obscene words appears to have triggered and provoked the accused in assaulting the deceased. The accused went home and brought the axe. According to the trial court, this shows a premeditated intent to kill the deceased. But, in view of the sequence of events directed hereinbefore, it is difficult to accept such view. Rather, it would be plausible to hold Page 9 of 13 that being provoked by the abuse of the deceased, the accused decided to assault him for which he went to bring the axe. The time gap between the abuse and the assault is too small to allow a person to take a calculated decision of doing away with the life of another person. On the contrary, it can be safely concluded that because of the abuse by the deceased which was preceded by a verbal altercation between them, the deceased lost the power of self control at that time and committed the act. According to our considered view the case would be squarely covered under Exception-1 to 300, which reads as follows:- “Exception1.-When culpable homicide is not murder.-Culpable homicide is not murder if the offender, whilst deprived of the power of self- control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos: First. -That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly.- That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the power of such public servant. Page 10 of 13 Thirdly.-That the provocation is not given by anything done in the lawful exercise of the right of private defence.” 12. It must also be kept in mind that if the accused had the intention of causing the death of the deceased then he would have made an attempt at the initial stage itself without getting into any altercation. In the celebrated case of K.M. Nanavati vs. State of Maharashtra, reported in AIR 1962 SC 605, the Apex Court held as follows:- test of “ (1) The "grave and sudden" provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to Section 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.” Page 11 of 13 Thus, we have no hesitation in holding that the act committed by the accused, though culpable homicide, would not amount to murder being covered by Exception- 1 to Section 300 of I.P.C.. Therefore, the conviction under Section 302 of IPC is liable to be interfered with. 13. It is borne out from the evidence on record that the deceased dealt one blow on the left side neck of the deceased causing grievous injuries which ultimately led to his death. But, use of the axe as the weapon of offence and the site on which the blow much inflicted, i.e. neck of the deceased which is a vital part of the body, suggests that the accused had done so with the intention of causing death or such bodily injuries as is lightly to cause death of the deceased. Therefore, this is a case which would act the attract the offence under Section 304 Part -
Decision
1. We hold accordingly. 14. Having held the offence to be one under Section 304 Part-1 I.P.C, the question is what would be the appropriate sentence. Having regard to the facts and circumstances of the case, the manner in which the Page 12 of 13 occurrence took place as also the fact that the appellant has been in custody for nearly twelve years, we are persuaded to hold that the appellant has been sufficiently punished for his misdeed. Therefore, ends of justice would be best served if the sentence is confined to the period already undergone by the accused. 15. In the result, the appeal is allowed in part. The order of conviction passed by the trial court under Section 302 of IPC is modified to Section 304 Part-I. Further, the sentence of imprisonment for life is modified to the period of custody already undergone by the accused. D. Dash, J. I agree (Sashikanta Mishra) Judge (D. Dash) Judge Orissa High Court, Cuttack, Dated the 27th March. 2023, B.C. Tudu, Sr. Steno Page 13 of 13