Parsu Gadaba vs State of Orissa

P.K. Tripathy, J.—This appeal from jail was preferred by the appellant challenging to the order of conviction and sentence for the offence u/s 302, Indian Penal Code imposed against him by Learned Sessions Judge, Koraput at Jeypore in Sessions Case No. 258 of 1994 as per the impugned judgment delivered on 20th September, 1996.

In substance the case of the prosecution is that the deceased owned and run a Tea Stall where he was also selling tiffin. On 17.4.1994 the fateful day, Appellant came and took tea and tiffin but did not pay for the same. That resulted in an altercation between the accused and the deceased. Sometimes thereafter, when the deceased left the Tea Stall to proceed to the forest to collect fire wood, the accused appeared with a Thenga (M.O. I) on the village street and dealt one blow to the head of the deceased. On receipt of that blow deceased fell down sustaining bleeding injury on the head. On seeing this P.W. No. 1 his niece and Ors. including P.W. Nos. 2 and 4 the co-villagers rushed to the spot. Accused fled away from the spot after inflicting the blow on the head of the deceased. In such injured condition, deceased was removed to Tentulikhunti Community Health Centre. The matter was reported in the local Police Station at Thentulikhunti and on the basis of that report, a case u/s 307, Indian Penal Code was registered. Deceased died in the Community Health Centre in the evening of 17.4.1994, therefore, investigation was taken up treating the case to be one u/s 302, Indian Penal Code. In course of the investigation, on 18.4.1994 Appellant was arrested and on 19.4.1994 he was forwarded to the judicial custody. After completing a routine investigation charge-sheet was submitted against the Appellant for the offence u/s 302, Indian Penal Code. Appellant was committed to the Court of Sessions and on 30.3.1995 charge was framed u/s 302, Indian Penal Code. In course of trial, out of the charge-sheeted witnesses, prosecution examined nine witnesses and relied on various documents marked Exhibits 1 to 26 and the M. Os. like the weapon of offence, M.O. I and the wearing apparels of the deceased and accused M. Os. II to VI. Dr. Shantanu Kumar Das (P.W. 5) was the treating physician and or. Bipra Charan Bhuyan (P.W. 6) conducted autopsy on the dead body of the deceased. Prosecution relied on the evidence of P.W. Nos. 1, 2 and 4 as the eye-witnesses to the occurrence. P.W. No. 9 was the Investigating Officer and rest of the witnesses including the wife of the deceased (P.W. No. 7) were all post-occurrence witnesses. Ext. 8 is the Inquest Report, Ext. 4 is the post-mortem report and Ext. 6 is the spot-map.

On assessment of evidence on record both oral and documentary. Learned Sessions Judge recorded finding that the deceased suffered a homicidal death due to the head injury and that Appellant is the author of that injury. Accordingly, he found the Appellant guilty of the offence u/s 302, Indian Penal Code and sentenced him to undergo imprisonment for life.

Miss. D. Mohapatra, Learned Counsel appearing for the Appellant, after placing the evidence on record and the findings recorded by the Trial Court, argues that evidence of P.W. Nos. 1, 2 and 4 are not acceptable as eye-witnesses to the occurrence because of the prevaricating statements made by them creating a doubtful circumstance about their presence at or near the spot to witness the occurrence of assault and therefore, the Appellant is entitled to benefit of doubt. On perusal of the evidence of the said witnesses, and the findings recorded by the Trial Court on a similar contention, we do not find any merit in that argument inasmuch as, evidence of the said three witnesses are consistent and corroborative relating to their presence near about the spot of occurrence by the time blow was dealt by the Appellant on the deceased. Evidence of P.W. No. 1 that the villagers had gone to collect the fuel wood from the forest is not consequential inasmuch as in Paragraph 3 of her cross-examination she has stated that by the time of assault, some villagers had already returned after collecting the fuel wood.

P.W. No. 6, the Doctor who conducted the post-mortem examination after stating about the injuries opined that:

Death was due to the above head-injury and brain hemorrhage. Death was homicidal in nature.

Trial Court accepted that evidence and recorded the finding that deceased suffered homicidal death. While not disputing to the medical evidence relating to the head injury and death due to that Learned Counsel for the Appellant argues that according to the prosecution a single blow was given which unfortunately resulted in homicidal death of the deceased. Appellant as well as the deceased both are Tribals residing in the District of Nowrangpur (in the erstwhile District of Koraput). Keeping in view their nature and temperament, the fact of preceding quarrel between the two and dealing of single blow having no intention to kill the offence committed by Appellant amounts to culpable homicide not amounting to murder and therefore, Appellant''s conviction be accordingly modified and the period of detention in Jail be treated as sufficient as a measure of punishment. Learned Standing Counsel, however, does not agree to this submission on the ground that the single blow given on the head, a vital part of the body and the injury being sufficient in ordinary course of nature to cause death a case of murder punishable u/s 302, Indian Penal Code is clearly made out. Accordingly, he argues to dismiss the appeal.

We find that this alternative contention of the Appellant bears merit for due consideration. On perusal of the evidence on record, we find the undisputed sequence of events that accused had gone to the Tea Stall of the deceased and did not pay for the food he consumed there. There are no further details available as to what are the reasons for non-payment of such price. It is, however, available from the evidence on record that after an altercation accused left that spot without making any payment and soon thereafter the deceased proceeded to the forest. Therefore, the feat of anger and annoyance which was with both of them was still continuing when accused dealt the single thing blow on the head of the deceased. Such a single blow is sufficient in ordinary course of nature to cause death of the deceased because of the velocity of the blow.

Thus, we find that a clear case of culpable homicide is made out against the Appellant. While defining the offence of ''murder'' in Section 300, Indian Penal Code it has been provided in the Exceptions 1 to 4 that those categories of culpable homicide do not amount to murder. In that respect, Exception 4, reads as hereunder:

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 offenders 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.

At the risk of repetition, we may note that the sequence of events of quarrel in the Tea Stall and the assault by the accused on the deceased clearly indicate that the deceased did the act in a feat of anger from provocation which he received in course of the altercation with the deceased. As noted in the above quoted explanation, in a case of given nature, it is not material, as to which of the party offered the provocation or became the aggressor. Thus, he find from the evidence on record, that having no intention to kill the deceased when the Appellant dealt the thing blow on the head of the deceased, which is sufficient in ordinary course of nature to cause the death but when he did so, he was devoid of self control from the provocation and therefore, the present case falls within the ambit and scope of above quoted Exception 4. Taking that view in the matter, we set aside the order of conviction for the offence u/s 302, Indian Penal Code and substituted the same by convicting the Appellant for the offence u/s 304, Indian Penal Code First part. Accordingly, we also modify the sentence and after hearing Learned Counsel for the Appellant, in that respect, we impose a sentence of ten years rigorous imprisonment against the Appellant. It is needless to say that the period of detention in the jail custody in connection with the present case be set off while counting the aforesaid punishment. Therefore, if he has already been detained in jail custody for a period of ten years and not required to be in jail custody in any other Criminal case, then, be may be set at liberty forthwith.

The Jail Criminal Appeal is accordingly allowed in part by modification of the order of conviction and sentence.

Pradip Mohanty, J.

I agree.

Appeal partly allowed.