MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.220 of 2015 In the matter of an Appeal under section 374(2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 20th March, 2015 passed by the learned Additional Sessions Judge, Phulbani in Sessions Trial No.73 of 2014 (T). Purna @ Purna Chandra Sahu …. Appellant State of Odisha …. Respondent -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.Gyanaloka Mohanty, Advocate. For Respondent - Mr.T.K. Praharaj, Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 19.03.2024 : Date of Judgment: 15.04.2024 D.Dash, J. The Appellant, by filing this Appeal, has assailed the judgment of conviction and order of sentence dated 20th March, 2015 passed by the learned Additional Sessions Judge, Phulbani in Sessions Trial No.73 of 2014 (T) corresponding to G.R. Case No.153 of 2014 arising out of Khajuripada P.S. Case No.23 of 2014 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Phulbani. CRLA No.220 of 2015 Page 1 of 18 The Appellant (accused) thereunder has been convicted for commission of offence under section 302 of the Indian Penal Code, 1860 (in short, ‘IPC’) and sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- (Rupees Ten Thousand) in default to undergo rigorous imprisonment for two (2) years for commission of the said offence. It is pertinent to mention here that along with this accused, namely, Purna @ Purna Chandra Sahu, three other accused persons, namely, Siba Sahu, Gauri Sahu & Sujata Sahu, had faced
Facts
the trial. The Trial Court, while acquitted those accused persons of the charges under section 302/34 of IPC, has convicted this accused (Purna @ Purna Chandra Sahu) under section 302 of the IPC and sentenced him as aforesaid. 2. Prosecution Case:- On 17.03.2014 around 08.30 a.m., when Pranita Sahu (Informant-P.W.3) was in the Anganwadi Centre at Village- Korupaska, she received an information from one Panchadev Sahu, who happens to be the elder brother of his husband (Brahmananda Sahu) and the wife of said Panchadev Sahu, namely, Amari Sahu that the present accused with Siba, Gauri & Sujata had assaulted Bhimsen Sahu to death. So, she immediately returned to Village-Bareiguda and saw Bhimsen lying with severe injuries near his ear and left eye. Bhimsen was shifted to CRLA No.220 of 2015 Page 2 of 18 Khajuripada Hospital and thereafter, as advised by the Doctor, he was shifted to District Headquarters Hospital, Phulbani where he (Bhimsen) succumbed to the said injuries during noon hour. The matter was then reported by said Pranita Sahu (Informant-P.W.3) in writing to the Inspector-in-Charge (I.I.C.) of Khajuripada Police Station. The I.I.C. (P.W.16), receiving the said written report, treated the same as FIR (Ext.3) and upon registration of the criminal case, took up the investigation of the case. 3. In course of investigation, the I.O (P.W.16) examined the informant (P.W.3) and recorded her statement under section 161 Cr.P.C. The I.O. (P.W.16), having visited the spot, prepared the spot map (Ext.8). At the spot, the I.O. (P.W.16) seized sample earth, blood stained earth under seizure list (Ext.1). The I.O. (P.W.16) also seized three numbers of lathi, one hammer and one small axe from the spot under seizure list (Ext.7). On getting information from the Hospital that the injured died while undergoing treatment at District Headquarters Hospital, Phulbani, the I.O. (P.W.16) proceeded to Phulbani and held inquest over the dead body of the Bhimsen and prepared his report (Ext.2). Thereafter, the dead body of Bhimsen was sent for post mortem examination by issuing necessary requisition. The I.O. (P.w.16) sent all the accused persons for medical examination CRLA No.220 of 2015 Page 3 of 18 after their arrest. The seized incriminating articles were sent for chemical examination through Court. On 11.06.2014, the I.O. (P.W.16) submitted the Final Form placing this accused (Bhimsen) with other three accused persons (Siba, Gauri & Sujata) to face the trial under section 302/34 of the IPC. 4. Learned SDJM, Phulbani on receipt of the Final Form, took cognizance of the offence under section 302 of the IPC and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge for the said offence against this accused and the other three accused persons. 5. In the Trial, the prosecution in total has examined sixteen (16) witnesses. Out of them, P.W.3 is the Informant. P.Ws.4, 5, 8, 13 & 14 are the eye witnesses to the occurrence as projected by the prosecution. P.Ws.2 & 11 are the post occurrence witnesses. The doctor who had conducted post mortem over the dead body of the deceased is P.W.10 and the Investigating Officer, at the end, has come to the witness box as P.W.16. 6. Besides leading the evidence by examining above the witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked as Ext.1 to Ext.10. Out of those, the important are the FIR (Ext.3), inquest CRLA No.220 of 2015 Page 4 of 18 report (Ext.2), spot map (Ext.8) and the Post Mortem Report (Ext.6). 7. The accused, having taken the plea of complete denial and false implication, has, however, examined two witnesses in support of such plea and exhibited some documents (Exts.A to Q).
Legal Reasoning
“7.3. In 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 the 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.” “7.4 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 IPC. It is held by this Court that the injury sustained by the deceased, not only exhibits intention of the accused in causing death of victim, but also knowledge of the accused in that regard. It is 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.” “7.5 A similar view is taken by this Court in the recent decision in State of Rajasthan vs. Leela Ram (2019) 13 SCC 131 and after considering a catena of decisions of this Court on the issue on 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 (Leela Ram – vs- State of Rajasthan, 2008 SCC OnLine Raj 945) of the CRLA No.220 of 2015 Page 15 of 18 High Court (in that case also the judgment 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: (i) that "21. Under Exception 4, culpable homicide is not murder if the stipulations contained in that provision are fulfilled. They are: 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 vs. State of Andhra Pradesh represented by its Public Persecutor, 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 argument that the offence would invariably be covered under Section 304 Part II IPC. 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 CRLA No.220 of 2015 Page 16 of 18 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 vs. Vedanayagam (1995) 1 SCC 326, this Court considered the usual argument of a single injury not being sufficient to invite a conviction Under Section 302 IPC. 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 IPC 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 IPC and further relying on the decision in Virsa Singh vs. State of Punjab; AIR 1958 SC 465, the Court set aside the acquittal under Section 302 IPC and convicted the accused for that offence. The Court (in Vedanayagam case (supra) para 4 relied on the observation by Bose, J. in Virsa Singh (supra) 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 and the deceased hail from rural background and are permanent residents of a village. 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 in a given situation. CRLA No.220 of 2015 Page 17 of 18 19. Applying the law laid down in the aforesaid decisions more particularly the decisions on the aspect of single injury, to the facts and circumstances of the case as have emerged in evidence and aforediscussed, 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, this Court, alters the conviction under Section 302 of the IPC to one under section 304-I of the IPC. Consequently, the Appellant (accused) is sentenced to undergo rigorous imprisonment for a period of ten (10) years. 20.
Arguments
8. Mr.G. Mohanty, learned counsel for the Appellant (accused), at the outset, without disputing the fact that the prosecution has proved the nature of death of Bhimsen as homicidal through the evidence of the Doctor (P.W.10), who had conducted the autopsy over the dead body of Bhimsen and other witnesses including the Informant (P.W.3), who had seen Bhimsen lying with injuries and have stated to have died in course of treatment in the Hospital, submitted that even accepting the evidence of P.Ws.4, 5, 13 & 14 as regards the role of this Appellant in assaulting the deceased by means of a lathi on his head and that to arriving at the scene of occurrence at a later point of time when the incident was going in presence of Bhimasen and other persons, namely, Siba, Gauri & Sujata (since acquitted) and further looking at the surrounding circumstances, the trial Court ought to have convicted the accused for commission of offence under section 304-II of the IPC and not under section 302 of the IPC. In support of the same, he has taken CRLA No.220 of 2015 Page 5 of 18 us through the evidence of all the prosecution witnesses who have stated to have seen the occurrence which we would be discussing. In support of the said submission, he relied upon the decision of the Apex Court in case of Stalin -Versus- State represented by the Inspector of Police; (2020) 9 SCC 524. He contended that in that case almost under the similar circumstances as like the present one, keeping in view the single knife blow by the accused leading to the death of the deceased, the conviction has been recorded under section 304-II of the IPC. He accordingly urged before us for alteration of the conviction of the accused to one under section 304-II of the IPC and appropriate reduction of the sentences as deemed just and proper. 9. Mr.T.K. Praharaj, learned Standing Counsel for the Respondent-State, in response to the submission of the learned counsel for the Appellant (accused), submitted that when on account of lathi blow given by this accused upon that Bhimsen on his head, the death has occasioned and the Doctor (P.w.10) conducting the autopsy over the dead body of Bhimsen has clearly stated that the death has resulted on account of hematoma present over left temporal lobe which was having multiple bleeding points over frontal temporal lobe, which clearly relate to CRLA No.220 of 2015 Page 6 of 18 the blow given by this accused, the Trial Court has rightly convicted this accused under section 302 of the IPC. 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 witnesses (P.W.1 to P.W.16 and D.Ws.1 & 2) and have perused the documents admitted in evidence and marked as Exts.1 to Ext.10 and Exts.A to Ext.Q. 11. In order to address the submission of the learned counsel for the accused confined to the alteration of conviction, let us proceed to examine the prosecution witnesses and find out the circumstances leading to the incident and as to what happened thereafter. The Informant has been examined as P.W.3, who is the sister-in-law of the deceased. In her FIR (Ext.3), when she states to have received information about the incident from the elder brother of her husband (Panchadev) and his wife (Amari), it is found that those two persons have not been examined and no explanation is given to that effect when it is also not stated that they had not seen the occurrence. P.W.4, who is a co-villager, has stated that when Bhimsen (deceased) with his wife were going for crushing stones, Rita and his sister, namely, Sujata assaulted Bhimsen. It is further stated CRLA No.220 of 2015 Page 7 of 18 that Rita was holding an axe whereas Sujata was holding a hammer and both of them assaulted Bhimsen. Her evidence is on the point that other accused reached at the spot and also assaulted Bhimsen by lathi. She has specifically stated that when Bhimsen wanted to rush to their house, this accused Purna assaulted him by lathi causing injuries at his right ear, which resulted his fall. Her evidence go to show as if that Rita and Sujata all of a sudden assaulted Bhimsen. She then does not state anything about the role of Bhimsen’s wife in response nor anything about her conduct. She is also not stating as to how she reacted in the said incident. P.W.5, who is another co-villager, has gone to say that he found accused persons meaning those, who faced the Trial, namely, Siba, Gauri, Sujata and this accused were quarrelling with Bhimsen and there was hullah. She has further stated that she found Bhimsen running away shouting “Marigali Marigali’ when all of a sudden, this accused dealt lathi blow near the right side of the ear, which resulted the fall of Bhimsen (deceased) having sustained bleeding injuries near the ear. She states to have seen the occurrence with Sulochana (P.W.4), who is the wife of younger brother of her husband. Then comes the evidence of P.W.8. It is her that at the relevant time, she was drawing water from the well and saw Rita and Sujata creating ‘Gandagola’ with Bhimsen. Rita, Siba and CRLA No.220 of 2015 Page 8 of 18 Gauri then arrived, being armed with lathis and they assaulted Bhimsen by lathi on his body and thereafter, this accused arrived there holding a lathi and at the time, when Bhimsen (deceased) wanted to ran away, this accused Purna is said to have assaulted Bhimsen by means of that lathi resulting his fall after having sustained bleeding injury near his ear and nose. Similarly, it has been stated by P.W.13, who is none other than the wife of Bhimsen (deceased) that there was altercation between Bhimsen on one hand and Puja & Rita on the other, in course of which Sujata (since acquitted) assaulted Bhimsen by a handle of the axe and on her intervention, this accused Purna with Siba & Gauri came to the spot. She has further stated that when accused Siba and Gauri assaulted her by lathi on her forehead causing bleeding injury, accused Sujata assaulted by the handle of the hammer on her left wrist. All of them including this accused Purna attempted to assault Bhimsen for which she out of fear, went inside the house of Prema Gouda. This witness does not state that till then no one including this accused had assaulted Bhimsen. She states that at that time, when her husband was running away, accused Purna dealt two blows on the head of Bhimsen by wooden lathi which resulted his fall. Thus, when it is stated by other witnesses such as P.Ws.4, 5 & 8 that these accused Purna gave one blow on the head of the deceased. P.W.13 states that this accused had given blows by that wooden lathi. CRLA No.220 of 2015 Page 9 of 18 It has been stated by P.W.14 that she had seen accused persons meaning thereby Siba, Gauri & Sujata and this accused Purna having altercation with Bhimsen and his family members. Her further evidence is that Rita & Sujata assaulted Bhimsen by lathi and handle of the hammer and thereafter Rita & Sujata assaulted Bhimsen by lathi and then as Bhimsen was rushing towards the house of one Prema Gouda, this accused assaulted him by wooden lathi on his head. Thus, cumulative assessment of the evidence of these witnesses would go to show that there was altercation between the members of the prosecution party and when Bhimsen was running away, they state that this accused gave a lathi blow on his head. The incident is found to have taken place all of a sudden and as it appears has stretched over for certain period of time. The Trial Court has found the evidence of all these prosecution witnesses to be not acceptable in so far as the roles of Siba, Gauri & Sujata are concerned. Accordingly, they have been acquitted of the charges. The evidence of the Doctor (P.W.10) is very specific that the blow on the head of Bhimsen (deceased) has proved fatal. He is not stating that the injuries that he noticed was the result of repeated lathi blows and were not the result of one blow. CRLA No.220 of 2015 Page 10 of 18 12. In case of Mahesh Balmiki –versus- 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. A 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 the intention to kill the deceased. In any event, he can safely be attributed the knowledge that the knife-blow given by him was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death.” 13. In case of Dhirajbhai Gorakhbhai Nayak vs. 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 prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is CRLA No.220 of 2015 Page 11 of 18 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 an 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 could in such cases the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. 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 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 had 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 CRLA No.220 of 2015 Page 12 of 18 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 no sudden quarrel and there was a premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression “undue advantage” as used in the provision means “unfair advantage”. 14. In case of Pulicherla Nagaraju vs. 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:- “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 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 into offences punishable 302, are not 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 converted CRLA No.220 of 2015 Page 13 of 18 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 premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause 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 not there may be several other special exhaustive and circumstances with reference to individual cases which may throw light on the question of intention.” 15. In case of Singapagu Anjaiah vs. 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 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 lead to one and the only conclusion that the appellant intended to cause death of the deceased.” CRLA No.220 of 2015 Page 14 of 18 16. In case of State of Rajasthan through the Secretary vs. Kanhaiya Lal,(2019) 5 SCC 639, the Apex Court in paras 7.3, 7.4 and 7.5 held as follows:-
Decision
In the result, the Appeal is allowed in part. With the above modification as to judgment of conviction and order of sentence dated 20th March, 2015 passed by the learned Additional Sessions Judge, Phulbani in Sessions Trial No.73 of 2014 (T), the Appeal stands disposed of. V. Narasingh, J. I Agree. 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 14:39:41 Basu CRLA No.220 of 2015 (D. Dash), Judge. (V.Narasingh), Judge Page 18 of 18