Rabi Majhi vs State of Orissa

L. Mohapatra, J.—The Appellant having been convicted for commission of offence under Sections 302 and 323 Indian Penal Code and sentenced to imprisonment for life for his conviction u/s 302 Indian Penal Code and further sentenced to three months rigorous imprisonment for commission of offence u/s 323 Indian Penal Code by the Learned 2nd Additional Sessions Judge, Bhubaneswar in S.T. No. 30/532 of 1996, has preferred this appeal against the order of conviction and sentence.

The accusation on the basis of which the Appellant faced trial are that the deceased Saji is the married sister of the Appellant. Fifteen years prior to the occurrence, she had come to her matrimonial house with her minor son aged about seven months since she was ailing. On 28.7.1996 at about 3 P.M. when the informant Sudarsan Swain alias Magi (P.W.1) was taking food after returning from his field, he heard the voice of P.W.2 calling the villagers and shouting to the effect that the Appellant had dealt cut blows on his sister Saji by katari. Hearing about such incident, he rushed to the spot and found the sister of the Appellant, deceased Saji lying on the western side of the house near the village road with cut injuries on her body and the Appellant standing nearby holding a blood-stained katari. On being questioned by P.W.1, the Appellant said that he had killed the deceased and will kill her son and so saying the Appellant tried to enter into the house carrying the minor son of the deceased. The informant (P.W.1) thereafter physically intervened and caught hold of the Appellant. But the Appellant assaulted him by means of that katari causing bleeding injuries on his nose and chest. Even despite receipt of injury, P.W.1 caught hold of the Appellant along with katari and started shouting. Other persons of the locality arrived at the spot and the Appellant was over-powered and the informant (P.W.1) removed the katari from the hand of the Appellant. By that time Saji had already Succumbed to the injuries. Being asked by the villagers, the Appellant confessed to have killed the deceased on the ground that he asked the deceased to serve him food and since there was delay in serving the food, out of anger, he assaulted by means of katari. The information with regard to the incident was communicated to the OIC of the Chandka PS over phone; who after receipt of the information, arrived at the spot and on his arrival, P.W.1 narrated the incident before him which was reduced to writing and was treated as FIR (Ext.1). Investigation was conducted thereafter and on completion of investigation, charge-sheet was filed for commission of offences under Sections 302 and 323 Indian Penal Code.

Prosecution examined as many as thirteen witnesses to prove the charges. But none was examined on behalf of the defence. The Appellant advanced the plea of total denial of the prosecution allegation and of false implication.

Out of thirteen witnesses examined on behalf of the prosecution, P.W.1 is the informant and the injured. P.W.2 is the first person who reached the spot immediately after the occurrence and is an eye-witness to assault on P.W.1. P. Ws. 3, 4, 10 and 11 are the postoccurrence witnesses and out of them P. Ws.3 & 4 are the witnesses to assault on P.W.1. P. Ws.5 to 8 are seizure witnesses and P.W.8 is also a signatory to the inquest report. P.W.9 is the doctor who conducted the post-mortem examination. P. Ws.12 & 13 are the Investigating Officers. The Trial Court on the basis of the evidence of these witnesses, corroborated by the medical evidence, found the Appellant guilty of the charges and convicted him for commission of offence u/s 302 Indian Penal Code for committing murder of his sister and also found the Appellant guilty of committing offence u/s 323 Indian Penal Code for assaulting P.W.1.

The Learned Counsel appearing for the Appellant assails the impugned judgment on the ground that on the date of occurrence, the Appellant was hungry and asked the deceased for food. The deceased having not served the food immediately, the Appellant got enraged and assaulted the deceased by means of a katari and the Appellant at the spur of the moment lost control over his anger and committed the offence. In view of the above, the Appellant could only be convicted u/s 304 Part-I Indian Penal Code. But he has been illegally convicted u/s 302 Indian Penal Code. The Learned Counsel for the State submitted that merely because the deceased could not serve the food immediately, could not give rise to grave and sudden provocation which could result in such an incident and, therefore, the Appellant has been rightly convicted for commission of offence u/s 302 Indian Penal Code.

P.W.1 is the informant and is also the injured. In his deposition this witness has stated that after hearing hullah of P.W.2, he went to the spot and found the deceased lying outside the house with cut injuries on her body and the Appellant was trying to enter into the house holding the child of the deceased being armed with blood-stained katari and declaring to assault and kill the child also. He thereafter caught hold of the Appellant preventing him from committing further crime and when he asked, the Appellant challenged him as to who was he to prevent him and also stated that he had committed murder of his sister and will also commit murder of the child. This witness tried to prevent the Appellant from assaulting the child and when he tried to catch hold of the Appellant, he was also assaulted by means of the same katari as a result of which he sustained injuries on his nose and right side chest. Even after receipt of such injury, he succeeded in snatching away the katari from the Appellant and raised hullah and as a result of which other villagers, P.W.3, 4 and Ors. arrived at the spot. All of them caught hold of the Appellant but by that time the deceased had already died. Nothing has been brought out in cross-examination to disbelieve the testimony of this witness. This witness has also stated that after arrival of the parents of the Appellant, on being asked by the villagers, the Appellant confessed that he killed the deceased since she served watered rice instead of hot rice. P.W.2 is the first witness who came to the spot and shouted saying that the Appellant had cut the deceased by means of katari and hearing her hullah, the informant (P.W.1) came to the spot. This witness has stated about the assault on P.W.1 and the manner in which P.W.1 caught hold of the Appellant. P.W.3 is a post-occurrence witness so far as the deceased is concerned but had witnessed the assault on P.W.1. He has further stated that on being asked by the villagers, the Appellant confessed to have killed the deceased. P.W.4 is another witness who has also stated about the extra-judicial confession made before the villagers. P.W.5 is the witness to the seizure under Ext.2 and he has stated that while producing katari, P.W.1 told that by means of that katari, Appellant had killed the deceased and has assaulted him. P.W.6 is a witness to the seizure of blood-stained lungi of the Appellant under seizure list Ext.4. P.W.8 is a witness to the inquest and P.W.9 is the doctor who conducted the postmortem examination. P.W.10 is the witness to the seizure of katari under Ext.2 as well as witness to seizure of blood-stained sample earth from the spot under Ext.3. P.W.11 has stated that after hearing hullah, he came to the spot and found the deceased lying dead with a pool of blood with cut injuries on her left side and right scapular region and the Appellant having been caught hold of by three to four persons. P. Ws.12 and 13 are the Investigating Officers.

On perusal of the entire evidence, it appears that initially the Appellant made an extra-judicial confession before P.W.1 stating that he had committed murder of his sister Saji and also declared to murder her son. Thereafter when the Appellant was caught hold of by P.W.1 and other villagers, he again made another extra-judicial confession before the villagers to which P. Ws.1, 3 & 4 are the witnesses. The Learned Counsel for the Appellant submitted that the so-called extra-judicial confession made before the villagers, cannot be acted upon since such statement was not voluntary. We find some force in the contention of the Learned Counsel for the Appellant in this regard since P.W.11 in crossexamination, has stated that by the time the Appellant made the extra judicial confession before the villagers, he had already been tied to a Drum-stick tree and in that condition, on being asked by the villagers, he confessed to have committed murder of his sister. Even accepting this contention of the Learned Counsel for the Appellant, the extra-judicial confession made before P.W.1 immediately after the occurrence, cannot be disbelieved. Apart from extra-judicial confession before P.W.1, the other evidence available on record, is that the Appellant was found by P.W.1 standing near the deceased with a blood-stained katari; by means of which the Appellant assaulted P.W.1. It further appears that the Appellant was trying to get into the room along with the child of the deceased declaring that he would kill the child also. The post-mortem report also says that the deceased sustained three incised injuries which could be caused by the katari. The wearing apparels of the Appellant also contained human blood and there is no explanation by the Appellant as to how his own wearing apparels were stained with human blood. In overall consideration of the evidence of the witnesses, irresistible conclusion is that, it is the Appellant and the Appellant alone who committed murder of the deceased and also assaulted P.W.1. The sole ground taken by the Learned Counsel for the Appellant is that there was grave and sudden provocation which resulted in such an unfortunate incident. From the extra-judicial confession made by the Appellant, it appears that on the date of occurrence, he after coming back home, asked the deceased to serve food and instead of serving hot rice, the deceased served watered rice. The Appellant suddenly got enraged and assaulted the deceased by means of a katari. Admittedly the Appellant is a member of the Scheduled Tribe community and it is the common knowledge that these people living in remote places of tribal areas, are ordinarily short tempered. This Court in the case of Lokanath Behera alias Khokan Vs. State of Orissa, , while considering Section 299 Indian Penal Code observed as follows:

Intention or knowledge necessary to render the killing culpable homicide is to be established by the prosecution which can be done by proof of circumstances which prove the act or omission. The presumption is that a man knows the probable result of his conduct. When a man is charged with doing an act of which the probable consequence may be highly injurious, the intention is an inference of law resulting from the doing of the act. Intention is proved by or inferred from the acts of the accused and the circumstances of the case.

The existence of intention is not to be inferred unless it follows as a natural and probable consequence from the act. Where death is caused by an extraordinary intervening circumstances, no presumption of intention or knowledge can reasonably be drawn. Where death is caused, the degree of guilt of the offender depends on the intention or knowledge with which he did the act and the offences of which he may be convicted are murder, culpable homicide not amounting to murder, grievous hurt or hurt with variations on account of the weapon or the means used, the seat of assault, the provocation and so forth.

In order to form an intention, there must be a capacity for reason and when by some extraneous force, this capacity has been ousted, the capacity to form an intention must have been unseated, too. Knowledge, however, stands upon a different footing. Some degree of knowledge must be attributed to every sane person, although the degree of knowledge which any particular person can be assumed to possess may vary. The word ''knowledge'' within the expression "with the knowledge that he is likely by such act to cause death" occurring in Section 299 of the Code defining ''culpable homicide'' is a strong word and imports a certainty and not merely a probability. If a man commits an act and the consequences beyond his purpose result, it is for the Court to determine how far he can be held to have the knowledge that he was likely by such act to cause the actual result.

As is evident from the evidence adduced in course of trial, any evidence with regard to intention is absent. The Appellant asked the deceased to serve the food and when the deceased served the watered rice, he got enraged and assaulted the deceased. There was no intention to kill the deceased and at the spur of the moment, having lost control over himself, the Appellant out of anger, dealt blows, by means of katari, to the deceased. We are, therefore, of the view that because of the grave and sudden provocation, at the spur of the moment, the Appellant committed the offence and, therefore, should have been convicted for commission of offence u/s 304 Part-I Indian Penal Code. We accordingly set aside the judgment dated 25.2.1997 passed by the 2nd Additional Sessions Judge, Bhubaneswar in S.T. No. 30/532 of 1996 so far as it relates to conviction of the Appellant u/s 302 Indian Penal Code for committing murder of the deceased and convict him for commission of offence u/s 304 Part-I Indian Penal Code and sentence him to rigorous imprisonment for ten years. His conviction and sentence for commission of offence u/s 323 Indian Penal Code for assaulting P.W.1 is confirmed. Both the sentences are to run concurrently.

If the Appellant (Rabi Majhi) is in custody for more than ten years, as submitted by Mr. Mohanty, Learned Counsel for the Appellant, he be set at liberty forthwith unless his detention is required in connection with any other case.

B.P. Ray, J.

I Agree.