Rohita Amanta vs State of Orissa

S.K. Sahoo, J.—The appellant faced trial in the Court of learned Addl. Sessions Judge, Angul in Criminal Trial (Sessions) No. 95/2004/24/2004 for offence punishable under section 302 Indian Penal Code for committing murder of Pramod Amanta (hereafter ''the deceased'') on 29.09.2003 at about 9.00 a.m. at village Khambeswarpali.

The learned trial Court vide impugned judgment and order dated 05.11.2005 held the appellant guilty under section 302 Indian Penal Code and sentenced him to undergo imprisonment for life.

The prosecution case, as per the FIR lodged by one Nila Amanta (P.W.1) is that on 29.09.2003 (Monday) at about 9.00 a.m. while the informant was sitting on the verandah of her house with his grandson, at that time the deceased who was the son of the informant had altercation with the appellant relating to pumpkin. The deceased came in front of the house of the appellant and opposed him for which the appellant shot an arrow at the deceased which hit on the left side chest of the deceased. The deceased pulled out that arrow and tried to escape towards the house of one Bishnu Pradhan in order to save his life but the appellant followed him holding a Tangia and assaulted the deceased on his neck for which he fell down on the village road but thereafter also the appellant continued to assault the deceased with Tangia and dealt a number of blows on the neck as a result of which the deceased succumbed to the injuries. The appellant left the spot holding the Tangia. It is mentioned in the FIR that co-villagers Parbati Pradhan (P.W.2) and Banita Nayak (P.W.3) had seen the occurrence and when the informant shouted, co-villagers gathered at the spot and they had also seen the appellant leaving the spot with bloodstained Tangia.

On the basis of such first information report of P.W.1 before Officer-in-charge of Athmallik Police Station, Athmallik P.S. Case No. 82 of 2003 was registered on 29.9.2003 under Section 302 Indian Penal Code.

P.W.7 Nandakishore Behera who as the Asst. Sub-Inspector Police attached to Athmallik Police Station registered the case in absence of the Officer-in-charge and took up investigation of the case. During course of investigation, he examined the informant and other witnesses, visited the spot and prepared spot map Ext.6. P.W.7 held inquest over the dead body of the deceased in presence of the witnesses and prepared inquest report Ext.1. He also sent the dead body for postmortem examination to Sub-Divisional Hospital, Athmallik. He seized some sample earth alongwith blood stained earth from the spot under seizure list Ext.7 so also one bow and arrow from the spot under seizure list Ext.8. He also seized the wearing apparels of the deceased and the command certificate under seizure list Ext.9 and on 30.09.2003, he handed over the charge of investigation to P.W.8 Prasant Kumar Mohanty, the Officer-in-charge of Athamallik Police Station. P.W.8 arrested the appellant and on the basis of the statement (Ext.3) of the appellant and being led by the appellant, he recovered the weapon of offence i.e. Tangia from out of the Chakunda bush under seizure list Ext.4. P.W.8 seized the wearing apparels of the appellant under seizure list Ext.2. He sent the seized arrow as well as Tangia to the Medical Officer of C.H.C., Athmallik for clarification regarding possibilities of the injuries sustained by the deceased with such weapons. He also sent the seized materials to State Forensic Science Laboratory, Rasulgarh for examination and opinion through S.D.J.M., Athmalik and handed over charge of investigation to Muralidhar Barala (P.W.5), Circle Inspector of Police, Athamallik on 14.12.2003 who on completion of investigation submitted charge-sheet in the Court of S.D.J.M., Athamallik.

After submission of charge-sheet in the concerned committal court of the Magistrate, the case was committed to the Court of Sessions after observing due committal procedure and the case was made over to the learned Addl. Sessions Judge, Angul for disposal in accordance with law where the learned trial Judge charged the appellant under section 302 IPC and since the appellant refuted that charge and pleaded not guilty and claimed to be tried, the Sessions trial procedure was resorted to prosecute him and establish his guilt.

The defence plea of the appellant during trial was one of denial and it was suggested to the witnesses that on account of village politics, the appellant has been falsely entangled in the case.

In order to prove its case, the prosecution examined nine witnesses.

P.W. 1 Nila Amanta is the mother of the deceased who is also the informant in the case and she is an eye witness to the occurrence.

P.W.2 Parbati Pradhan is a co-villager of the appellant as well as the deceased and she is also an eye witness to the occurrence.

P.W.3 Banita Naik did not support the prosecution case for which she was declared hostile by the prosecution.

P.W.4 Bipin Amant is a witness to the inquest over the dead body vide inquest report Ext.1.

P.W.5 Muralidhar Baral was the Circle Inspector of Police, Athamalik who took over the charge of investigation on 14.12.2003 and submitted charge-sheet on 25.12.2003.

P.W.6 Bidesi Ghibala is a witness to the leading to discovery of a Tangia at the instance of the appellant under seizure list Ext.4.

P.W.7 Nandakishore Behera was the Asst. Sub-Inspector of Police attached to Athamallik Police Station who registered the case and took up investigation and handed over the charge of investigation on the next day to Prasant Kumar Mohany (P.W.8)

P.W.8 Prasant Kumar Mohanty was the Officer-in-Charge of Athamallik Police Station who took over the charge of investigation on 30.9.2003 and handed over the charge of investigation to P.W.5.

P.W.9 Dr. Sunil Kumar Panda was attached to Sub-Divisional Hospital, Athamalik as a Pediatric Specialist who conducted post-mortem examination over the cadaver of the deceased on 29.9.2003 and proved the post-mortem report vide Ext.12. He also gave reply to the query made by the Investigating Officer regarding possibility of injuries sustained by the deceased by means of axe and arrow.

The prosecution exhibited thirteen documents Ext.1 is the inquest report, Exts.2, 4, 7, 8 and 9 are the seizure lists, Ext.3 is the statement of the appellant recorded under section 27 of the Evidence Act, Ext.5 is the first informant report, Ext.6 is the spot map, Ext.10 is the clarification sought for by the I.O. from the doctor, Ext.11 is the copy of forwarding report, Ext.12 is the post-mortem report and Ext.13 is the chemical examination report.

The prosecution also proved five material objects. M.O.I is the Tangia, M.O.II is the bow, M.O.III is the arrow, M.O.IV is the gerua dhoti and M.O.V is the lungi.

No witness was examined on behalf of the defence and no document was also proved on behalf of the defence.

Adverting over the nature and cause of death of the deceased, we find that apart from inquest report Ext.1, the prosecution has relied upon the evidence of P.W.9 Dr. Sunil Kumar Panda who had conducted post-mortem examination over the cadaver of the deceased on 29.9.2003 at 3.15 p.m. on police requisition at Sub-Divisional Hospital, Athamallik. During postmortem examination, following sustained external injuries were found on the cadaver of the deceased:-

(i) A chopped wound on anterior aspect of neck transversely of size 4 1/2" x 3" x neck depth;

(ii) A chopped wound on left side of neck transversely of size 6 1/2" x 5" x neck depth;

(iii) A chopped wound on the back of neck and right scapular area transversely of size 8" x 3" x neck depth and tailing towards right scapular area;

(iv) Incised wound on left side of chest 3" lateral to mid sternal line of size 3" x 1" x 1".

All the structures of the neck like skin, muscles, larynx trachea, oesophagus, great vessels of neck vertebrae, spinal cord were cut except a tag of skin 2" width of right side of neck. The wounds were opined to be ante-mortem in nature.

The autopsy doctor opined that the injuries around the neck were caused by heavy sharp cutting weapon like axe and injury on left side chest was caused by sharp cutting weapon. As per the opinion of the doctor, the cause of death was on account of shock and haemorrhage due to injuries inflicted to vital organs like neck and the time since death was within twelve hours. The doctor further opined that the injuries found on the dead body were sufficient in ordinary course of nature to cause death. The post-mortem examination report was marked as Ext.12.

The autopsy doctor further opined that injuries No. 1, 2 and 3 as per Ext.12 were possible by Tangia M.O.I and injury No. 4 as per Ext.12 was possible by iron portion of the arrow M.O.III. The opinion of the doctor has been marked as Ext.10/1. The doctor opined that the injury around the neck was fatal.

The learned counsel for the appellant has not challenged the evidence of the autopsy doctor or the findings in the autopsy examination report Ext.12. The learned trial Court has discussed about the medical evidence and came to hold that the death of the deceased was caused on account of injuries found on the cadaver of the deceased which leaves no room for doubt that the deceased met with homicidal death.

After going through the unchallenged testimony of the autopsy doctor, the post-mortem report Ext.12, we are also of the view that the prosecution has successfully established that the deceased met with a homicidal death.

The learned counsel for the appellant Mr. Bibekananda Mohapatra launching a scathing attack on the impugned judgment and order submitted that the eye witnesses account are not at all trustworthy and in absence of any motive to commit the crime, the prosecution case should be disbelieved. He further contended that the evidence of the witnesses relating to the leading to discovery of the Tangia is not at all credible and the prosecution has miserably failed in bringing forth unimpeachable credible evidence concerning the participation of the appellant in the alleged crime. He further contended that the evidence on record indicates that the occurrence happened all on sudden and the crime was committed without any premeditation and in the heat of passion upon a sudden quarrel and therefore the offence will not fall within the ambit of section 302 IPC rather it would amount to culpable homicide not amounting to murder punishable under section 304 Part-I IPC.

Submitting conversely, the learned Addl. Government Advocate Mr. J. Katikia argued that the prosecution witnesses are truthful, reliable and their testimonies are cogent and unblemished and the evidence of the eye witnesses which gets corroboration from the medical evidence coupled with the recovery of the weapon of the offence at the instance of the appellant clearly makes out the culpability of the appellant. He further contended that the appellant has not only shot the arrow at the first instance on the chest of the deceased but when the deceased pulled out that arrow and tried to escape from the spot in order to save his life, the deceased followed him with the Tangia and assaulted him on the neck and after the deceased fell down on the ground, dealt repeated blows on the neck and the nature of injuries sustained by the deceased as well as the overt act committed by the appellant squarely makes out an offence under section 302 IPC and therefore the contention of the learned counsel for the appellant that the case would come within the purview of culpable homicide not amounting to murder punishable under section 304 Par-I IPC is not at all acceptable.

We have thoughtfully considered the rival contentions vis-a-vis the evidences on record.

P.W.1 who is the mother of the deceased has stated that while she was sitting on the verandah of her house with her grandson on the date of incident at about 9.00 a.m., there was an altercation between the appellant and the deceased on the issue of pumpkin and the appellant shot an arrow which hit on the left side chest of the deceased and penetrated into the chest. The deceased himself pulled the arrow and ran away towards the house of Bishnu Pradhan. When the deceased fell down, the appellant dealt Tangia blow on the left side neck of the deceased for which the deceased sustained bleeding injures on the left side neck and died and the appellant fled away with the Tangia. She has further stated that P.W.2 Parbati Pradhan and P.W.3 Banita Naik had also seen the incident. During cross examination of P.W.1, it was brought out that the appellant was the nephew of P.W.1 and there was no misunderstanding between the appellant and the deceased prior to the incident. It is further elicited in the cross-examination that the appellant was armed with arrow, bow and Tangia when he quarreled with the deceased and the deceased was the Ward Member of the village. Nothing has been elicited in the cross-examination to disbelieve the evidence of P.W.1. We find that the P.W.1 is a very natural witness and since both the appellant as well the deceased were related to her, there is no chance of false implication of the appellant. The occurrence had taken place in front of the house of P.W.1 and therefore her presence at the spot cannot be doubted. The spot map indicates that the distance between the first place of assault as well as second place is just 35''. The seizure of blood stain earth under seizure list Ext.7, bow and arrow from the spot under seizure list Ext.8 also substantiate the evidence of P.W.1.

The evidence of P.W.1 is corroborated by P.W.2 Parbati Pradhan who has stated that her house adjoins the house of the deceased and on the date of incident while she was going for grazing her goat, she found the appellant and the deceased quarreling and then the appellant shot an arrow from his bow which penetrated the chest of the deceased. The deceased pulled the arrow but ultimately fell down but even thereafter the appellant inflicted Tangia blows on the backside neck of the appellant for which the deceased succumbed to the injures. In the cross-examination of P.W.2, it was elicited that the appellant and the deceased were standing in their respective houses when they were quarreling and she further stated that when the appellant took away pumpkin raised by the deceased, there was quarrel between them and during the course of quarrel, the deceased came in front of the house of the appellant and at that time the deceased was not carrying any weapon and that she requested both the appellant and the deceased not to quarrel. Thus the evidence of P.W.2 has also remained unchallenged and nothing substantial has been elicited in the cross-examination to disbelieve her testimony.

Thus after carefully scanning the evidence of these two eye witnesses P.W.1 and P.W.2, we are of the view that the prosecution has proved that when the appellant took away the pumpkin raised by the deceased, there was quarrel between them and during course of such quarrel, the appellant shot an arrow at the deceased which hit on his left side chest and the deceased pulled that arrow from his chest and while trying to run away from the spot, he fell down on the ground where after the appellant dealt repeated Tangia blows on the neck of the deceased resulting severe bleeding injuries and thereafter the appellant fled away from the spot with his Tangia.

The evidence of these two eye witnesses P.W.1 and P.W.2 appears to be not only truthful and reliable but also the same is corroborated by the medical evidence. The autopsy doctor has categorically stated that injury No. 4 might have been caused by arrow (iron portion) M.O.III and injuries Nos. 1, 2 and 3 can be caused by Tangia M.O.I. When the occurrence is spoken to by eye-witnesses and the same is supported by Medical Report, it is not necessary to investigate the motive behind such commission of offence. In other words, where a murderous assault has been established by clear ocular evidence, motive pales into insignificance. Accordingly, we have no hesitation to rely upon the testimonies of these two eye witnesses.

The evidence of leading to discovery of the weapon of offence i.e. Tangia M.O.I at the instance of the appellant has been deposed to by P.W.6 and the Investigating Officer P.W.8.

P.W.8 has stated that on 30.09.2003 at about 2.45 p.m., he apprehended the appellant and arrested him at about 3.00 p.m. and he recorded the statement of the appellant under section 27 of the Evidence Act and that while the appellant was in police custody, on the basis of his statement vide Ext.3, he led the I.O. and the witnesses to the playground of Mahendra High School and gave recovery of the Tangia from out of Chakunda bush which was seized in presence of the witnesses under seizure list Ext.4. The appellant also signed Ext.4.

The evidence of P.W.8 is well corroborated by the evidence of P.W.6 who has stated that while the appellant was in police custody, he stated that he would give recovery of the weapon of the offence (Tangia) and the police recorded his statement where he put his signature so also the appellant put his signature and then the appellant led him, the police and other witnesses to the playground of Mahendra High School of village Nuasahi and brought the weapon of offence i.e. Tangia from Chakunda bush which he had concealed and the same was seized by police under seizure list Ext.4 and the appellant and he himself also signed the said seizure list. Except giving suggestions to both these witnesses that the appellant did not make any such statement nor that the Tangia was seized on the statement of the appellant, nothing was elicited in the cross-examination of either P.W.6 or P.W.8 to discredit their version regarding this aspect. The Investigating Officer P.W.8 was put a question by the learned counsel for the defence in the cross-examination and he has specifically stated that the place of recovery of Tangia was not accessible to public.

Not only it has been proved by the medical evidence that the injury sustained by the deceased was possible by Tangia M.O.I but also the Tangia which was sent for chemical examination was found to have contained human blood of group ''A''. In view of the evidences of P.W.6 and P.W.8, we are of the view that the prosecution has successfully proved the leading to discovery of the weapon of offence i.e. Tangia (M.O.I) in pursuance to the statement made by the appellant as well as on being led by the appellant to the place of concealment and since the place from where the Tangia was recovered was a bushy area and it was not accessible to the public and on being sent for chemical examination, the chemical analyst found that the Tangia contained human blood of group ''A'', these circumstances are also incriminating against the appellant apart from the eye witnesses account.

Coming to the contentions of the learned counsel for the appellant that the case would fall within the ambit of section 304 Part-I IPC, we find that the evidence on record indicates that there was quarrel between the appellant and the deceased on the issue of pumpkin as the appellant had taken away the pumpkin raised by the deceased. The evidence on record clearly indicates that the deceased was unarmed at that point of time and the appellant not only first shot an arrow which pierced the chest of the deceased but after he pulled out that arrow from the chest and tried to escape from the spot to save his life, the appellant chased him with the Tangia and dealt blows after blows on the neck even after the deceased had fallen down on the ground. The type of injuries caused on the neck as per the post-mortem report are very serious in nature and apart from the chest wound which was caused on account of arrow shot, there are three chopped wounds on the neck and all the structures of neck like skin, muscles, larynx, trachea, oesophagus, great vessels of neck, vertebrae, spinal cord were cut except a tag of skin of 2" width on the right side of neck. The injuries around the neck were fatal and sufficient in ordinary course of nature to cause death.

Exception 4 to section 300 IPC 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."

In case of Surinder Kumar Vs. Union Territory, Chandigarh, AIR 1989 SC 1094 : (1989) CriLJ 883 : (1989) 1 Crimes 658 : (1989) 1 JT 505 : (1989) 96 PLR 268 : (1989) 1 SCALE 563 : (1989) 2 SCC 217 : (1989) 1 SCR 941 : (1989) 2 UJ 23 , it is held as follows:-

"To invoke this exception, four requirements must be satisfied, 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.

The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly".

Exception 4 to section 300 IPC would indicate that it is only an unpremeditated assault committed 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 which would come within the purview of such Exception and it is necessary that all the ingredients must be found. In other words, even if it is proved to be an unpremeditated assault committed in a sudden fight in the heat of passion upon a sudden quarrel but it appears from the materials available on record that the offender had taken undue advantage or had acted in a cruel or unusual manner, then no benefit under Exception 4 can be granted to the accused. The expression "undue advantage" as used in the provision means "unfair advantage". If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken.

From the evidence on record, it is established that the appellant had not only taken undue advantage of shooting the arrow on the chest of the deceased who was unarmed at the time of occurrence but had also acted in a cruel manner in chasing the deceased and dealing repeated blows with Tangia causing three chopped wounds on the vital part of the body like neck even after the deceased had fallen down on the ground which were sufficient in ordinary course of nature to cause death. The impact of the assault, the depth of the injuries clearly reveals the force with which the assault was made. Therefore we are of the view that Exception 4 to section 300 IPC is not applicable in this case and the contentions of the learned counsel for the appellant that the case comes within the purview of 304 Part-I IPC is liable to be rejected. The contentions of the learned counsel for the State that the appellant had taken undue advantage and acted in a cruel manner in chasing the deceased and repeatedly dealt Tangia blows on the neck of the deceased and therefore the case would fall within the mischief of section 302 of IPC is quite acceptable.

In view of our analysis, we are of the view that the learned trial Court is quite justified in convicting the appellant under section 302 IPC and sentencing him to undergo imprisonment for life.

In the result, the impugned judgment and order of conviction and sentence passed by the learned trial Judge is hereby confirmed and the appeal stands dismissed. As it appears, the appellant is in jail custody. He shall remain in jail to serve out the sentence imposed against him.

Lower Court Records with a copy of this judgment be sent down to the learned trial Court forthwith for information and necessary action.

Before parting we would quote,

"Family quarrels are bitter things. They don''t go according to any rules. They''re not like aches or wounds; they''re more like splits in the skin that won''t heal because there''s not enough material."

-F. Scott Fitzgerald

Accordingly the Jail criminal appeal is dismissed.

Vinod Prasad, J.

I agree.