Gayadhar Naik vs State of Orissa

S.N. Phukan, C.J.—The accused-appellant Gayadhar Naik was booked for trial under Sections 302 and 201 of the Indian Penal Code before the learned Sessions Judge: Dhenkanal, The case was registered as S.T. Case No. 136 of 1980 and the learned Sessions Jude found the accused guilty u/s 302, I.P.C. and accordingly convicted him to suffer imprisonment for life. The accused-appellant was found not guilty u/s 201, I.P.C.

The prosecution case, briefly stated, is that in the evening of 9-9-1989 while the deceased-Sambhu Manigira and Banshidhar Naik (P.W. 1), were returning from Sanjamura to their village Kumbhamunda after taking liquor, on the way they met the accused-appellant and there was exchange of hot words between the accused and the deceased over "Pidha Puja". The prosecution has further alleged that the accused pushed the deceased into the Satidhara Nala at Gangadhar ghat and the deceased fell into the water. The further allegation is that the accused thereafter pulled him out of the Nala and gave three strokes with stones on his head resulting in his death. The dead body was thrown into the Nala and the accused fled away.

Initially a report was made at the Kishorenagar Police Station after the dead body of the deceased was found floating in the Nala which was registered as U.D. Case No. 2 of 1989 about two days after the occurrence. The Officer-in-Charge of the aforesaid Police Station in course of his enquiry in the above U.D. case held inquest over the dead body and sent the dead body for postmortem examination. Three stones and the blood stained Dhoti and Banian (M.Os. I and II) and the Napkin (M.O. III) belonging to the accused were seized. During the course of investigation, witnesses were examined u/s 161, Cr.P.C. and also statements of some withesses were recorded by the Magistrate u/s 164, Cr.P.C. There was also an extra judicial confession before P.W. 3 whose statement has been duly recorded by the Magistrate u/s 164, Cr.P.C. The seized articles were sent for chemical examination and serological test to the State Forensic Science Laboratory, Bhubaneswar. On completion of investigation, the police submitted the charge-sheet under the above sections.

The accused-appellant pleaded not guilty to the above charges and further stated that as Banshi (P.W. 1) was hostile to him, he has been falsely implicated.

The prosecution in order to prove its case has examined nine witnesses including the Investigating Officer and doctor.

We have heard Shri Acharya, learned counsel for the appellant, and Shri Mohanty, learned Additional Public Prosecutor for the State.

Now let us scan the evidence on record.

P.W. 1 Banshidhar Naik, has stated in his evidence in chief that there was a quarrel between the accused and the deceased and both were in a drunken state. According to him, the accused gave a push to the deceased on the Satidhara Nala as a result of which the deceased fell into the water of the Nala. The accused then pulled out the deceased, who was drenched, from the Nala and gave three blows by means of stones hitting the back side of the head of the deceased. Though P.W. 1 has stated that the accused chased and captured him and threatened that he would murder him in case the incident was divulged to the co-villagers, we are unable to accept this part of the statement that there was an extra judicial confession. In cross-examination, he has also admitted that on the date of occurrence he had been to the village Sanjamura with the deceased to take liquor and after taking liquor they returned at about 7.30 p.m. and the accused did not accompany them to village Sanjamura. According to him, he met the accused in front of the house of one Hadi Kumar in the said village. He was not present at the time of "Pidha Puja". He has totally pleaded ignorance as to why the accused pushed the deceased or assaulted him. He has admitted that there was exchange of abuses between the accused and the deceased. He has not supported the prosecution story, that the deceased was pulled put from the Nala, and thereafter given three blows by means of stones on the back side of his head. In fact, he has stated in the examination in chief that the deceased was lying at the spot and he came to know subsequently that the deceased was dead. In the cross-examination he has disclosed that the accused assaulted the deceased standing one cubit away from him by means of stones and he was at a distance of 12 to 15 feet at the time of assault. According to him, it was a dark night. This witness was examined by the police after three days of the occurrence. Strangely, he has stated that out of fear he did not divulge the incident to anybody.

P.W. 2 has only stated that he saw both the accused and the deceased with P.W. 1 returning from Sanjamura village to village Kumbermunda and one day after he came to know that the deceased was murdered near Satidhara Nala. The evidence of this witness is not at all helpful for the prosecution. Moreover, he was examined after six days of the occurrence by the I.O.

P.W. 3 has been examined mainly to prove the extrajudicial confession of the accused-appellant before him that he (appellant) gave two to three blows by means of stones on the deceased and that the accused was not aware if the deceased was alive or dead. According to him, the accused wanted him to accompany to the place of occurrence but the accused could not show him the deceased. In cross-examination he has stated that the police came three days after the occurrence and that on 11-9-1989 along with one Surajmani Kudei he had gone to the police station to report about the incident being deputed by the villagers. He has further stated that the wife of the deceased reported to them that her husband was missing. The wife of the deceased and one Jadumani Jala found the dead body lying in the water of the Nala. They Only reported about the death of the deceased due to drowning. Interestingly, he did not disclose about the extrajudicial confession of the accused made to him.

P.W. 4 is a witness to the seizure. P.W. 5 has stated that the wife of the deceased came crying and reported that her husband was missing since two days and, therefore, they went in search of the deceased and found the dead body lying on the water of Satidhars Nala near Dangadhar ghat with face down-words and they could identify the dead body from a distance. Thereafter they returned to the village and sent P.W. 3 and one Surajmani to the police station to report about the death of the deceased. P.W. 5 is not an eye witness to the occurrence.

P. W. 6 is a police Havildar who took the dead body for postmortem examination. P.W. 7, the medical officer, who conducted autopsy on the dead body of the deceased on 12-9-1989 at 10 A. M., found the following external appearance:-

"Profusely swollen, maggots all over body, skin peeled off in many places, sands particles present in few places, mouth open, tongue protruded, eyes and some places of the body have been as eaten away by the maggots."

He found the following injuries :-

"(1) Laceration 2" x 1/2" x 1/2" size longitudinally present over the right parieto occipital region of scalp.

(2) Laceration 1" x 1/2" x 1/2'' longitudinally present 1" posterior to injury No. 1.

(3) Bruise 2" x 2" size present over occipital region of scalp in the right side.

Craniums - Skull-communited fracture of occipital bone and right parietal bone posteriorily. Membrane ruptured. Brain decomposed.

Other viscera was in the stage of decomposition. External genitalis was swollen."

According to the doctor, the death was due to head injuries and the injuries were antemortem in nature. He has not stated that the injuries were sufficient to cause the death in normal course. From his evidence, we find that the dead body was in a partially decomposed state.

P.W. 8, who is the Special Judicial Magistrate, recorded the statements of P. Ws. 1 and 3 u/s 164, Cr. P.C. P.W.9 is the I.O. In cross-examination, the I.O. has stated that first it was reported that the deceased died of drowning. He has further stated that he examined the witnesses u/s 161, Cr. P.C.

On perusal of the above evidence on record, we have no hesitation to accept the evidence of P.W. 1 who has categorically made a statement that the accused gave two-three blows with stones on the head of the deceased. This statement has been corroborated by the medical evidence of the doctor (P.W.7). Though P.W.1 has stated that the deceased was pushed to the Nala and thereafter he was pulled out from the Nala, this statement, in our opinion, is an exaggeration which always happens in case of such witnesses and, moreover, this is not supported by the extra judicial confession made before P.W. 3, according to whom, the accused stated before him that only three blows were given to the deceased with stones which is corroborated by the medical evidence of the doctor (P.W 7). Therefore, we hold that the accused is responsible for giving three blows on the head of the deceased which were the cause of his death as per the evidence of the doctor.

In view of the above facts and evidence on record, the question that arises is whether the conviction and sentence u/s 302, I.P.C. are maintainable.

Exception 4 to Section 300 reads as under:-

"Exception 4 : Culpable homicide is not murder, if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel, and without the offender having taken undue advantage or acted in a cruel or unusual manner.

Explanation : It is immaterial in such cases which party offers the provocation or commits the first assault."

Therefore, four requirements are necessary to bring a case under the above Exception 4, namely, (i) it was a sudden fight; (ii) there was no premeditation, (iii) the act was done in a heat of passion; and (iv) the assailant had not '' taken any undue advantage or acted in a cruel manner.

Coming to the case in hand, we have already stated that the evidence that the deceased was pushed into the Nala as alleged is not sufficient. The only evidence available is that the deceased was hit by stones at three places. As stated above, the doctor has not stated that these injuries were sufficient to cause death in normal course.

In this connection we may refer to a decision of the apex Court in Surinder Kumar Vs. Union Territory, Chandigarh, , wherein it was held that in a sudden quarrel if a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he is entitled to the benefit of Exception 4 of Section 300, I.P.C. provided that he has not acted cruelly. It has also been held that the number of injuries is not material.

In the case in hand, there is nothing on record to show that the assailant took any undue advantage or that he acted in a cruel manner. In fact, from the evidence on record it is clear that both the accused and the deceased were in a drunken stage and there was a quarrel between them.

In view of the above position, we hold that the conviction u/s 302, I.P.C. is not sustainable and it is a fit case for conviction u/s 304, Part-I, I.P.C. Accordingly, we alter the conviction u/s 302, I.P.C. to Section 304, Part-I. I.P.C. and consequently the sentence of life imprisonment to imprisonment often years. The accused-appellant shall be entitled to the benefit of the imprisonment already under-gone.

In the result, the appeal is allowed in part.

A. Pasayat, J.

I agree.