State of Orissa vs Kabasi Suba

K.B. Panda, J.—The Respondent was facing trial u/s 302, Indian Penal Code on the allegation of having intentionally caused the death of one Kabasi Rama, a co-villager. His acquittal of that charge but conviction u/s 304 Part II, Indian Penal Code by the Sessions Judge, Koraput on 14-7-1975 has occasioned this appeal by the State of Orissa.

The facts, in brief, are thus: The villagers of Nelakota were observing Dhana Nua Khia festival on 17-10-1974. They were indulging in revelry and almost all were drunk. At about 5 30 p. m. while the deceased Kabasi Rama was dancing in a drunken state, the Respondent appeared there similarly drunk and pressed his neck with both the hands. P.Ws. 1 and 2 who happened to be in that congregation went to separate them. But by that time, the deceased was dead. Consequently the dead body was brought before the house of P.W. 4, the village Headman whom the incident was narrated. The next day, that is 18-10-1974 a Panchayat was held where the Respondent admitted to have killed the deceased by throtting him. The village school master scribed Ext. 1 which was handed over to the brother of the deceased and has been treated as F.I.R. in this case.

The plea of the Respondent was that the deceased while drunk fell on a stone and died and that he has not committed his murder.

The prosecution examined 10 witnesses of whom P.Ws. 1 and 2 are the eye-witnesses to the occurrence; P.Ws. 3, 4 and 5 are witnesses to the extra-judicial confession; and P.W. 6 is the doctor who held the post-mortem. The rest are formal Police witnesses.

The learned lower Court on the basis of the evidence of the two eye-witnesses, the evidence of extra-judicial confession deposed to by P.Ws. 3, 4 and 5, and the medical evidence, held that the Respondent pressed the neck of the deceased as a result of which he died. But he acquitted the accused of the charge u/s 302, Indian Penal Code on the following findings:

The learned Public Prosecutor submits that if the Court comes to a conclusion that the accused was heavily drunk at the time of commission of the offence, the case would come u/s 304 Part II and not u/s 302, Indian Penal Code, particular, when the prosecution has failed to prove the motive for the murder. In the F.I.R. it is stated that all the villagers including the accused and the deceased were drunk. Further, it is stated by P.W. 4 that all the villagers were drunk on the day of parba. And again" prosecution has not established any motive for the crime which could have prompted the accused to form an intention to kill the deceased. There is absolutely nothing to suggest that there was any enmity between the accused and the deceased. In such circumstance, it must be found that the accused at the time of the commission of the offence was completely beside his mmd and consequently the requisite intention under the first three clauses of Section 300, Indian Penal Code cannot be attributed to him. But all the same in such a case of voluntary drunkenness knowledge has to be presumed against the accused in the same manner as if there was no drunkenness. Therefore, the act of the accused causing the death of the deceased comes only u/s 304 Part II, Indian Penal Code and not u/s 302, Indian Penal Code .

It was contended on behalf of the State that the reasoning advanced by the learned lower Court in acquitting the Respondent of the charge u/s 302. Indian Penal Code is not sustainable inasmuch as the same is fallacious. The learned Advocate appearing for the Respondent, in view of the overwhelming evidence that the accused pressed the neck of the deceased as a result of which he died, did not challenge this fact. His only contention was that both the accused and the Respondent were drunk and each caught hold of the throat of the other and unfortunately the deceased died, whereas the Respondent escaped death with injuries (nail marks) at his neck. Thus he faintly contended that he had the right of private defence of his person in his favour in that the Respondent had not the requisite intention of causing the death of the deceased as envisaged u/s 302. Indian Penal Code. Alternatively, he supported the finding of the learned lower Court that it would be a case u/s 304 Part II.

As it appears, the learned lower Court though has relied much on the provisions of Section 86, Indian Penal Code which runs thus:

Offence requiring a particular intention or know ledge committed by one who is intoxicated. -

In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will.

has misconstrued the same. It only means that a person voluntarily intoxicated will be deemed to have the same knowledge as be would have had if he would not have been intoxicated. In other words, voluntary drunkenness is no adequate defence for any offence. The question of absence of requisite intention would come for consideration if there is positive evidence that the accused was so deeply drunk that he was unable to realise the consequence of his own act. In the case of Basdev Vs. The State of Pepsu, , it has been held thus:

While the first part of the section speaks of intent or knowledge, the latter part deals only with knowledge and a certain element of doubt in interpretation may possible be felt by reason of this omission. So far as knowledge is concerned the Court must attribute to the intoxicated man the same knowledge as if he was quite sober. But so far as intent or intention is concerned, the Court must gather it from the attending general circumstances of the case paying due regard to the degree of intoxication: Was the man beside his mind altogether for the time being? If so it would not be possible to fix him with the requisite intention. But if he had not gone so deep in drinking, and from the facts it could be found that he-knew what he was about the Court can apply the rule that a man is presumed to intend the natural consequences of his act or acts.

A distinction must be drawn between motive, intention and knowledge. Motive is something which prompts a man to form an intention, and knowledge is an awareness of the consequences of the act. In many cases intention and knowledge merge into each other and mean the same thing more or less and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin but it is not difficult to perceive that they connote different things.

In the instant case, there is absolutely no evidence that the Respondent was very deeply drunk and was unable to take care of himself or to know the consequence of his own act. While the people were merged in revelry, he came, quarrelled with the deceased, caught hold of his throat and after he had fallen down sat over him and further pressed his neck. True, there are also the nail marks on the neck of the Respondent ani the evidence is that both the deceased and the accused had caught hold of each other''s throat. But that by itself will not justify the finding that the Respondent was so heavily drunk that the intention contemplated u/s 302, Indian Penal Code was necessarily absent. We would, therefore, on the evidence on record, have no hesitation in saying that the finding of the learned Court below, as quoted above, is palpably wrong.

There is, however, another feature in this case which we should not lose sight of. It is this: Both the parties were drunk and the deceased and the Respondent while fighting with each other had caught hold of each other''s neck. In that process, though the deceased died, yet the accused had human finger marks on his neck, as in the medical evidence. In the circumstances of the case, although the case will not come u/s 304 Part II, yet it will come under the Fourth Exception to Section 302, Indian Penal Code inasmuch as what developed was without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the accused having taken undue advantage or acted in a cruel or unusual manner with the result that the offence committed was culpable homicide not amounting to murder. True, the Respondent has not pleaded any exception to Section 302, Indian Penal Code yet since from the circumstances it is clear that he comes under Exception 4, the conviction will be one u/s 304, Part II. As the conviction u/s 304 Part II is converted into a conviction u/s 300 Part I, the sentence of imprisonment for five years awarded by the learned lower Court is enhanced to six years'' R.I. With this modification in the conviction and sentence, the appeal is partly allowed.

S. Acharya, J.

I agree.

Appeal partly allowed.