Mahantara Sethi vs State Of Odisha

D. Dash, J

The Appellant, by filing this Appeal, has challenged the judgment of conviction and order of sentence dated 16th September, 2010 & 17th September, 2010 respectively passed by the learned Ad hoc Additional Sessions Judge (Fast Track), Chatrapur in Sessions Trial No.38 of 2008 (S.T. No.121/2008-GDC) corresponding to G.R. Case No.215 of 2007 arising out of Hinjili P.S. Case No.100 of 2007 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Chatrapur.

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.5,000/- (Rupees Five Thousand) in default to undergo rigorous imprisonment for one (1) year for commission of the said offence.

Prosecution Case:-

On 02.07.2007 around 11.30 a.m., there was hot exchange of words between the accused and Podal Bhagaban on the road in front of the house of the accused. It is then stated that this accused gave blows by means of Tangia on the head and face of Podal Bhagaban, which resulted his fall on the road after sustaining bleeding injuries. One P. Narayan (Informant-P.W.3) then lodged a written report with the Officer-in-Charge (O.I.C.) of Hinjili Police Station.

The O.I.C. (P.W.11), receiving the written report, treated the same as FIR (Ext.2) and upon registration of the criminal case, took up the investigation of the case.

In course of investigation, the I.O (P.W.11) examined the informant (P.W.3) and other witnesses. The I.O. (P.W.11), having visited the spot, prepared the spot map (Ext.10). He shifted the injured to M.K.C.G. Medical College & Hospital, Berhampur for treatment. From the spot, the I.O. (P.W.11) seized the blood stained tangia, sample earth and blood stained earth under the seizure list (Ext.1). The wearing apparels of the injured were seized under seizure list (Ext.3). On getting information from the Hospital that the injured died while undergoing treatment at Berhampur, the I.O. (P.W.11) proceeded to Berhampur and held inquest over the dead body of the Podal Bhagaban and prepared his report (Ext.4). Thereafter, the dead body of Podal was sent for post mortem examination by issuing necessary requisition. The seized incriminating articles were sent for chemical examination through Court. On 28.10.2007, the I.O. (P.W.11) handed over the charge of the investigation to the Circle Inspector of Hinjili, who, on completion of the investigation, submitted the Final Form placing this accused to face the trial under section 302 of the IPC.

Learned SDJM, Chatrapur 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 the accused.

In the Trial, the prosecution in total has examined eleven (11) witnesses. Out of them, P.W.3 is the Informant. P.Ws.1, 2, 4, 6, 7 & 8 are the eye witnesses to the occurrence as projected by the prosecution. P.W.5 is the brother of the deceased. The doctor who had conducted post mortem over the dead body of the deceased is P.W.9 and the Investigating Officer has come to the witness box as P.W.11.

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.15. Out of those, the important are the FIR (Ext.2), inquest report (Ext.4), spot map (Ext.10), Post Mortem Report (Ext.5) and chemical examination report (Ext.15).

The accused has not tendered any evidence in support of his plea of denial and false implication.

Mr.J.Samantaray, learned counsel for the Appellant (accused), at the outset, instead of questioning the finding of the Trial Court that Podal Bhagaban met a homicidal death as also the happenings in the incident and the role of this accused, played therein by assaulting the deceased submitted that cumulatively viewing the facts and circumstances of the case which have emerged in evidence piloted by the prosecution through the witnesses examined as the eye witnesses to the occurrence for the said role and act played by the accused, 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 as has been recorded by the Trial Court. In support of the same, he has taken 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 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.

Mr.P.K. Mohanty, learned Additional Standing Counsel for the Respondent-State refuted the submission of the learned counsel for the Appellant (accused) that for the role of the accused in the said incident, he would be liable for commission of offence under section 304-II of the IPC. According to him, P.Ws.1, 2, 4 & 5 have clearly stated that the accused give tangia blows on the head and face of Podal Bhagaban for which the he (Podal) fell on the ground and then this accused left the spot by carrying the tangia, which has not been shaken during cross-examination in any manner. Therefore, when it has been proved through acceptable evidence that the accused by means of tangia assaulted on the head of the deceased, the Trial Court has rightly convicted the accused.

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.11) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.15.

In order to address the submission of the learned counsel for the accused which stands 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.

P.W.1, who is a co-villager of the accused and the deceased, has stated that around 11.30 a.m., the incident took place in front of Kothaghara of the village. His specific evidence is that in front of that Kothaghara, the accused and Podal Bhagaban (deceased) were engaged in hot exchange of words. He then states to have seen the accused giving tangia blows on Podal on his head and face.

P.W.2 is, however, not stating anything about the hot exchange of words between the accused and the deceased, but he states to have seen the accused giving tangia blows on the head and face of the deceased.

It has been the categorical evidence of P.w.4 that he had seen the accused and deceased to be exchanging hot words between themselves. He has stated that in course of hot exchange of words, suddenly the accused dealt blows by means of the tangia on the head and face of the deceased. None of these witnesses have stated that when the accused and deceased were engaging in hot exchange of words, the accused then was holding a tangia with him.

They also do not state as to if the deceased was carrying any arm with him. Had it been the fact that accused was having that tangia, it stands beyond comprehension that the deceased being unarmed would still have ventured to have hot exchange of words.

P.W.5 has in the same line stated the accused and the deceased to be exchanging hot words between themselves and during such altercation, the accused dealt blows by means of the tangia on the head and face of the deceased.

The Doctor, who has conducted the autopsy over the dead body of the deceased, has been examined as P.W.9. His specific evidence is that the lacerated wound on the forehead near medial to the lateral angel of left eye and abrasion found on the right patella have led to the death. It has been stated by him that such was the result of blunt force impact whereas the other injuries, which he noticed as opined by him might have been caused moderately heavy cutting weapon. His evidence is not on the score that those three injuries, which are almost in one region, are not on account of one blow but by repeated blows when it has been stated that other injuries which were not fatal might have been caused by sharp cutting weapon. So the evidence is unclear as to if the blows on the head of the deceased were with the sharp side of that tangia. This incident, having taken place on 02.07.2007, the death has occasioned on 16.07.2007 when the injured was undergoing treatment in the Hospital. It is seen that there was some quarrel between the accused and the deceased and there was hot exchange of words.

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.”

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 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 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 a cruel or unusual manner. The expression “undue advantage” as used in the provision means “unfair advantage”.

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 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 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 exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention.”

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.”

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:-

“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 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:

"21. 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. "

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 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.”

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.”

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.

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.

In the result, the Appeal is allowed in part. With the above modification as to the judgment of conviction and order of sentence dated 16th September, 2010 & 17th September, 2010 respectively passed by the learned Ad hoc Additional Sessions Judge (Fast Track), Chatrapur in Sessions Trial No.38 of 2008 (S.T. No.121/2008-GDC), the Appeal stands disposed of.

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