Rabi@Rabindra Behera And Others vs State Of Odisha

Sashikanta Mishra, J

The appellants question the correctness of the judgment and sentence passed by learned Additional Sessions Judge, Angul on 03.04.2001 in Sessions Trial Nos.133-A/1998 (1 of 1998), whereby they were convicted for the offence under Sections 302/148 of IPC and sentenced to imprisonment for life.

Prosecution case, briefly stated, is that a piece of government land in village Kampasal in Angul district was under the possession of deceased-Sukadev Dehury. Having heard on the evening of 30.01.1998 that members of Keuta community had raised ridges to encroach upon said land, he, accompanied by his son Sanatan and brother Somanath, went to the spot at about 7.00 a.m. on the next day. Seeing that ridges had been constructed, they dismantled the same with their hands. At that time, the mother of Jharu Behera came and protested, whereupon Biswanath (informant) told her that the land had been measured in the previous year and found to be government land as per the R.I.’s version and that if it was found to belong to the objectors, they would give up the same. Hearing this, the mother of Jharu went away. Half an hour later, accused Jharu Behera, his son Rabi Behera, Bandhu Behera, Chhabi Behera, Thaka Behera, Rathi Behera and Anil Behera being armed with Tablas and Lathis (stick), came to the spot and threatened to kill them. Chhabi assaulted Sukadev by giving a blow with the Tabla on his leg due to which he fell down. When the informant tried to snatch away the Tabla, Chhabi also dealt a blow causing bleeding injury on his thigh. Chhabi then dealt a Tabla blow on the neck of Sukadev. Anil and Thaka also assaulted Sukadev with Tablas. The other accused persons assaulted Sanatan. As a result of such assault, Sukadev died. The informant ran away from the spot and informed his brother, Suresh and thereafter both went to the police station and lodged a report. Basing on such report, Chhendipada P.S. Case No. 6 of 1998 was registered followed by investigation. Upon completion of investigation, charge-sheet was submitted against all the accused persons under Sections 147/148/302/307/149 of IPC.

The defence plea was of denial. Additionally, it was claimed that the incident had occurred in course of a quarrel in which the deceased attempted to kill accused-Chhabi.

To prove its case, prosecution examined thirteen witnesses and proved fifteen documents and seven material objects. The defence examined two witnesses, including accused-Chhabi Behera as D.W. 2.

The trial Court found from the evidence on record that there was enmity between the two groups, which was aggravated by the act of the accused persons in raising a ridge on the land which the deceased, Sukadev claimed to be his. When Sukadev dismantled the ridge being accompanied by others, the mother of Jharu, being present, protested and thereafter went away. Evidently informed by her, the accused persons came to the spot armed with deadly weapons and assaulted the deceased and others, causing his death. The trial court found the death homicidal in nature in view of the oral and medical evidence. The contradictions in the evidence of witnesses relating to the number of blows and sequence of the offence were brushed aside by holding that the same was natural, as the witnesses had been examined after a long time. Taking into consideration the evidence of the informant (P.W.1), the injured witnesses (P.Ws.3 and 4), and other post-occurrence witnesses, the trial Court found that there was clear evidence that the deceased sustained injuries due to the assault by the accused persons and died. The defence evidence was not believed, as there was no evidence of any injury having been sustained by D.W.2, as claimed by him. The plea of exercise of right of private defence was thus disbelieved. On such finding, the trial court, while holding that the evidence was not sufficient to prove the offence under Section 307 of IPC, held the accused persons guilty of the offence punishable under Sections 302/148 of IPC. They were thus convicted and sentenced to imprisonment for life.

Being aggrieved, the accused/appellants have preferred the present appeal.

Heard Mr.S.K. Dash, learned counsel for the accused-appellants and Mr. P.S. Nayak, learned AGA for the State.

Mr. Dash assails the impugned judgment of conviction and sentence on the following grounds:-

i. The contradictions in the evidence of the informant and eyewitnesses, being material, could not have been brushed aside by the trial Court.

ii. Though it is claimed that all eight accused persons had assaulted the informant and others yet, only four injuries were found on the body of the deceased.

iii. The weapon of offence was never recovered.

iv. The trial Court having accepted that there was dispute between the parties relating to land, should not have brushed aside the evidence of D.W.2.

iv. Even accepting the evidence on record, the case would not fall within the definition of murder, but one caused due to provocation.

Per contra, Mr. Nayak would contend that the evidence adduced by the prosecution through eyewitness accounts of P.Ws.1, 2, 3 and 4 is clear, consistent, reliable and trustworthy. The contradictions, if any, are minor in nature, having no significant effect. Since it was clearly proved that the accused persons came to the spot being armed with deadly weapons and assaulted the deceased and others causing injuries as a result of which the deceased expired at the spot, the trial court rightly held them guilty and convicted them.

We have carefully considered the rival contentions noted above and have gone through the case record. There is no dispute that deceased, Sukadev having sustained injuries on his body died as a result. The autopsy surgeon (P.W.12) clearly stated that the incised wounds found on the body of the deceased are possible to be caused by a sharp cutting weapon like, tangia or tabla. Defence has not disputed that the death of the deceased was homicidal in nature. Turing to the occurrence, it is seen that the informant (P.W.1) described the offence in vivid detail with his version being fully corroborated by the other injured eyewitnesses (P.Ws.3 and 4). We have gone through their depositions in detail. The consistent version of these witnesses is that the dispute arose when it was found by the informant that the accused persons had raised a ridge over the land which, was though government land, but under his cultivating possession. The informant, accompanied by the deceased and P.Ws.3 and 4 dismantled the ridge with their hands to which the mother of accused, Jharu protested. The informant assured that if it was found that the land actually belongs to the accused persons, they would give up their claim, regardless of the expenditure already made by them. Hearing this, the mother of Jharu went away. A short while later, all the accused persons being armed with tangia, tabla and badis (stick) came to the spot and assaulted the deceased and others causing injuries. Sukadev sustained injury on his head and other parts of the body and died on the spot. Certain contradictions were pointed out by the defence, but the trial court brushed aside the same and according to us, rightly so as the witnesses were deposing after a long time. We have also not found any reason to disbelieve the version of the witnesses.

Turning to the grounds raised by accused persons before us, we are of the view that it is only natural for the witnesses to fail to depose with mathematical precision about an occurrence, which took place a long time ago. This takes care of the first objection raised by Mr. Dash.

As regards the number of injuries, the postmortem report shows that deceased sustained as many as nine injuries with several on vital parts of his body, namely, neck and head. Therefore, there is nothing to disbelieve the prosecution witnesses that all the accused persons had assaulted the deceased, causing injuries.

As to the objection that the weapons of offence were never recovered and seized, we are not inclined to place much importance on this, for the reason that when direct evidence in the form of eyewitness accounts of the occurrence are available, non-recovery of the weapon of offence, which may be a lapse in investigation, cannot be treated as material to the case. This is being said for all the more reason that there is clear evidence of injuries having been caused due to sharp cutting weapons resulting in death.

Coming to the next ground raised by Mr. Dash that the trial court brushed aside the defence evidence (D.W.2) without valid reason, we find that according to D.W.2, the deceased was the aggressor as he allegedly assaulted D.W.2 by means of a tangia. One of the blows struck his back and the other, though aimed at his head, landed on his hand. The other witnesses gave him two blows with tangia on his leg. However, not a shred of evidence was put forth to prove the injuries allegedly sustained by D.W.2. Therefore, the plea of exercise of the right of private defence was rightly rejected by the trial Court and we concur with the same.

The last ground raised by Mr. Dash is that even accepting the case of the prosecution as a whole to be correct, it would still not be a case of murder but culpable homicide not amounting to murder. In this context, Mr. Dash would argue that there being evidence of a land dispute between the parties and of the informant and his group dismantling the ridge raised by the accused persons, it would amount to an act of provocation. Such act was initially protested by the mother of accused-Jharu but when it yielded no result, she informed the accused persons who went to the spot. Only because they were armed with weapons does not mean that they planned to kill anyone much less the deceased.

Per contra, Mr. Nayak would argue that the very fact that the accused persons came to the spot being armed with deadly weapons proves their intention to cause such bodily injury as would result in death. The trial court, according to Mr. Nayak, must be held to have rightly convicted the accused persons for committing murder.

In order to better appreciate the rival contentions, we feel it proper to once again refer to the sequence of events that unfolded on the fateful day even at the cost of repetition. The informant claims that on the previous evening, he was informed by the deceased that the accused persons had raised a ridge on the land, which he had cultivated. The informant, accompanied by his son Sanatan, brother Somanath and deceased went to the spot in the morning. The FIR mentions the time as 7.00 A.M. They removed the ridge to which the mother of the accused Jharu protested. She left the spot and after about half an hour, the accused persons came to the spot and assaulted the deceased and others. The FIR was lodged at 10.A.M. on the same day. We thus find that there was very little time gap between dismantling of the ridge, protest by Jharu’s mother and the actual occurrence. The whole thing appears to have occurred within a short span of about an hour, more or less. According to our considered view, it is too short a time period for the accused persons to have planned specifically to commit murder of the deceased. In any event, it was the informant who interacted with Jharu’s mother and therefore, the ire of the accused persons, if at all, ought to have been naturally directed against him. No role was played by the deceased during such interaction. This raises a doubt as to the motive of the accused persons to come to the spot with a pre-meditated mind of causing his death. In a country like India where majority of the rural population sustains on agriculture, dismantling a ridge raised by the accused persons can certainly be treated as an act of provocation. Therefore, the genesis of the actual assault most certainly lies in such act of the informant and his group. Such being the case and particularly given the short period of time during which the entire incident occurred, it is difficult for us to believe that the accused persons were actuated with the intent of causing death of the deceased. We say so also for the reason that accused Chhabi dealt the first blow with the tabla on the leg of the deceased, which can hardly be treated as a vital part of body or that it, by itself, could have caused death, though the second blow was on the neck. On the contrary, it can be reasonably inferred that because of the provocation caused by dismantling of the ridge raised by them by the informant and his group, a quarrel ensued between the two groups in course of which the accused persons assaulted the other group. The assault being by means of sharp cutting weapons and on some vital parts of the body, resulted in death of the deceased.

Exception-1 of Section-300 relates to grave and sudden provocation. In the case of K.M. Nanavati v. State of Maharashtra[1961 SCC OnLine SC 69], the Supreme Court held as follows:-

“85. The Indian law, relevant to the present enquiry, may be stated thus : (1) The test of “grave and sudden” provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the First Exception to Section 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.

Is there any standard of a reasonable man for the application of the doctrine of “grave and sudden” provocation? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc.; in short, the cultural, social and emotional background of the society to which an accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilization. It is neither possible nor desirable to lay down any standard with precision : it is for the court to decide in each case, having regard to the relevant circumstances. It is not necessary in this case to ascertain whether a reasonable man placed in the position of the accused would have lost his self-control momentarily or even temporarily when his wife confessed to him of her illicit intimacy with another, for we are satisfied on the evidence that the accused regained his self-control and killed Ahuja deliberately.

Bearing these principles in mind, let us look at the facts of this case. XX XX XX”

Prosecution has not adduced any evidence to show that the accused persons harbored any ill-will against the informant Biswanath, deceased Sukadev, his son Sanatan and brother Somanath at any time prior to the occurrence. Therefore, we are of the considered view that the case would not fall within the definition of ‘murder’ under Section 300 of IPC, punishable under Section 302 of IPC. Rather, it would be a case of culpable homicide not amounting to murder being covered by Exception-1 to Section 300.

We are persuaded to say so because, by assaulting the deceased and others with deadly weapons and causing injuries on vital parts of the body, the accused persons must be held to have knowledge that such injuries were likely to cause death, though without any intention to cause death. This is, therefore, a case squarely covered under Part-2 of Section 304 of IPC. The impugned judgment, therefore, warrants interference to the above extent.

Coming to the sentence to be imposed, Part-2 of Section-304 of the IPC prescribes punishment of imprisonment extending to ten years. It is seen that all the accused appellants are on bail in terms of orders passed earlier in this appeal. We have also received a report from the IIC of Chhendipada P.S. on 23.10.2025 that accused appellants Jharu Behera and Rathi Behera are presently very old and confined to their own homes. These two accused persons were aged more than sixty years at the time of the occurrence that is, in the year 1998. As such, we feel it would serve the ends of justice if the punishment is confined to the period of imprisonment already undergone by them during the trial. However, in case of the other accused appellants mainly, (i) Rabi@ Rabindra Behera, (ii) Thaka @Bikram Behera, (iii) Chhabi@Chhabila Behera, (iv) Baya@Baidhar Behera, (v) Ani@Anil Behera and (vi) Bandhu@Gopabandhu Behera, the sentence imposed by the trial court is modified to five years R.I., with the period of imprisonment already undergone by them to be set off.

In the result, the appeal is allowed in part. The impugned judgment and sentence dated 03.04.2001 passed by learned Additional Sessions Judge, Angul in Sessions Trial No.133-A/1998/1 of 1998 is modified to the extent mentioned in the previous paragraph.

The bail bonds of appellant Nos.1, 3, 4, 5, 6 and 8 namely, Rabi@Rabindra Behera, Thaka@Bikram Behera, Chhabi@Chhabila Behera, Baya@Baidhar Behera, Ani@Anil Behera and Bandhu@Gopabandhu Behera respectively stand cancelled and they be taken to custody forthwith to serve the remaining part of their modified sentence.