State of Orissa vs Lachhmi Mushli

S. Acharya, J.—This appeal by the State of Orissa is directed against the judgment in Sessions Case No. 93 of 1974 by which the Respondent Lachhmi Muduli who had been charged u/s 302, Indian Penal Code has been convicted u/s 304. Part II, Indian Penal Code.

The prosecution case in short is that on 5-9-1974 (Sunday) at about 3.30 p.m. the accused along with P.Ws. 1,2 and 3 and one Soma Majhi went to the Purunapani Dongar to drink Salap juice from the Salap tree belonging to the deceased in that place. The accused asked the deceased to extract Salap juice from the Salap tree and supply the same to him and the others who had gone with him. The deceased asked the accused and the others to wait till others reached that place. But the accused did not listen and insisted on the deceased to supply Salap juice. At this a quarrel ensued between the accused and the deceased, and in course of that quarrel the accused with his Bonda Kati, M.o. I, (i.e. a knife which the tribesmen of that locality usually carry with them) stabbed the deceased on his chest and again on his right thigh. On receiving these injuries the deceased fell down dead at that place. The accused then left that place with M.O. I. P.W. 1 went back to the village and in the evening informed about the above Incident to P.W. 5, the village. Headman. The latter came to the spot and saw the dead body of the deceased lying with bleeding injuries near the Salap tree. P. w. 1 guarded the dead body for the night. Next day (16-9-1974) morning a Panchayati was held in the village which was attended by P.W. 6, the Sarpanch of the locality. The accused was not present in the village and so he could not be made to attend the Panchayati. At the Panchayati P.Ws. 1 to 3 and some others stated all that took place at the place of occurrence on the previous day which resulted in the death of the deceased. Thereafter P.W. 5 went to the Mudulipada police station (about 5 kilometres away from the place of occurrence) and lodged the First Information Report (Ext. 9) in that police station at about 9.30 a.m. on that day. After investigation and commitment proceeding the accused was tried for a charge u/s 302. Indian Penal Code of which he has been acquitted but has been convicted u/s 304, Part II, Indian Penal Code.

The accused has denied to have killed the deceased by stabbing. In his statement u/s 313, Code of Criminal Procedure he stated that the Salap tree belonged to his father and the father of the deceased. On the date of occurrence he (the accused) asked the deceased to give him Salap juice, but the deceased did not comply with his request, and instead gave him three slaps, pushed him down and caught hold of his neck. At that time he raised his knife, M.O. I, and asked the deceased to desist from attacking the accused. In course of that incident the deceased might have come in contact with that knife and sustained the injuries on his person. According to the accused he did not inflict those injuries and he did not know how the said injuries were caused on the deceased. The accused denied the prosecution allegation that he was not in the village when the Panchayati took place, and he asserted that when the police came to the village he himself gave the M.O. I, the M.O. II (his shirt) and his Lenguti to the police.

P.W. 4 held the post-mortem examination on the dead body of the deceased on 17-9-1974 at 1.30 p.m. and found the following injuries:

An incised wound 1" x 11/2" entering into the thoracic cavity transversely on the right side of the chest 2" below the inner end of the right clavicle and 1" to right of the middle line;

(ii) All incised wound 31/4" x 1/4" x 1/2 on the outer side of the right thigh 4" below iliac crest, the margins of the wound being everted; and

(iii) A lacerated wound 3/4" x 1/4" x 1/8" in front of the right leg 6" below the knee. The margins of this wound were inverted.

(i) On dissection he found:

(1) An incised wound 3/4" x 1/2" passing through the intercostal muscles between the 2nd'' and the third ribs;

(2) An incised wound of the same size on the pleura on the right side; and

(3) An incised wound of the same size on the right lungs.

All these internal injuries 1, 2 and 3 corresponded to the above mentioned external injury No. 1. The right half of the thoracic cavity was full of blood and blood clots. Both the sides of the heart were empty. He opined that the said injuries were antemortem in nature and were sufficient in the ordinary course of nature to cause death.

He also opined that all the above-mentioned injuries could be caused by M.O. I; while injury Nos. 1 and 2 could be caused by the sharp end of the knife, injury No. 3 could be caused by the handle of that knife or by a rail. He further opined that the death of the deceased was due to shock and haemorrhage as a result of external injury No. 1 and the other internal injuries corresponding to that injury.

As the doctor (P.W. 4) in his deposition and in his post-mortem report (Ext. 1) stated that the age of the injuries was about 24 hours, Mr. Swain, the learned Counsel for the Respondent, contended that P.W. 4 either examined another dead body or he did not at all hold post-mortem examination on the dead body of the deceased. The dead body on which P.W. 4 conducted the autopsy was produced by the constable No. 689 who was deputed with the chalan Ext. 8 by the I.O., P.W. 8, to take the dead body to the Primary Health Center at Ramanaguda. From the post-mortem report Ext. 1 it is evident that some local people also accompanied the dead body when it was produced at the Primary Health Centre. There is no suggestion to anyone that the dead body of the deceased in this case was not produced for post-mortem examination. So the suggestion of examination of another dead body appears to be a light-hearted suggestion.

Though P.W. 4 has stated that the age of the injuries was about 24 hours, in the last sentence of column 4 of his post-mortem report he has stated that the approximate time of the postmortem examination from the death of the deceased was about 24 to 48 hours. As the post-mortem examination was held on 17-9-1974, the above statement in the last sentence of Ext. 1 is correct. On a perusal of the deposition of P.W. 4 and the postmortem report Ext. 1 in its entirety we are confident that the above-mentioned statement referred to by Mr. Swain is incorrect and was made at an unguarded moment. Doctors in writing out their reports and while deposing in Court should be very careful, as negligence on their part in that direction may lead to serious consequences and may badly affect the administration of justice.

On a perusal of the evidence on record we are convinced that the death of the deceased was homicidal.

The Court below on a consideration of the evidence of P.Ws. 1 to 3 and 5 and 6 concluded as follows:

I have not the least hesitation to hold that the accused stabbed the deceased on his chest and thigh as a result of which the deceased died at the spot.

After recording the aforesaid conclusion the Court below says:

... the 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 prior to the occurrence. On the other hand, the evidence is that both the accused and the deceased were heavily intoxicated. On all these facts and circumstances it can safely be held that at the time of the commission of the crime the accused was completely beside his mind and consequently 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 drunkennes-knowledge has to be questioned against the accused in the same manner as if there was no drunkenness. By attributing knowledge to the accused the act of the accused comes only u/s 304, Part II, Indian Penal Code. Accordingly, the accused must be held guilty u/s 304, Part II, Indian Penal Code.

From the above quotation it is quite clear that only because of the absence of motive or enmity promoting the accused to kill the deceased and because of the evidence of heavy intoxication of both the accused and the deceased the learned Sessions Judge held that the accused could not be convicted of the charge u/s 302, Indian Penal Code but could be convicted only u/s 304 Part II, I.P.C. This finding of the learned Sessions Judge is clearly incorrect. The offence of murder requires proof of intention and not motive. Adequate motive is not sufficient to sustain a conviction nor absence of motive can exonerate a person if ingredients of the offence are proved against him. Presence or absence of motive or enmity is relevant for assessing the evidence but absence of the same does not at all weaken the facts and circumstances which go to prove the guilt of the accused. Where there is sufficient direct and/or circumstantial evidence connecting the accused with the commission of the offence, the proof of motive or enmity becomes unimportant and exoneration from or mitigation of the offence cannot be claimed on the ground of absence of motive or enmity.

In the impugned judgment there is no finding that the accused was completely beside his mind. No doubt, if the accused was beside his mmd altogether for the time being while he committed the aforesaid act, the requisite intention required under the first three clauses of Section 300, Indian Penal Code cannot be attributed to him and he cannot be held guilty u/s 302, Indian Penal Code. Their Lordships of the Supreme Court in Basdev Vs. The State of Pepsu, , which is the leading decision on this topic, have held that if the accused

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.

After reviewing quite a number of decisions their Lordships accepted with approval the following passages appearing at page 63 of Russel on Crimes, 10th Edition.

There is distinction, however, between the defence of insanity in the true sense caused by excessive drunkenness and the defence of drunkenness which produces a condition such that the drunken man''s mind becomes incapable of forming a specific intention. If actual insanity in fact supervences as the result of alcoholic excess it furnishes as complete an answer to a criminal charge as insanity induced by any other cause.

But in cases falling short of insanity, evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent, but evidence of drunkenness which falls short of proving such incapacity and merely establishes that the mind of the accused was so affected by drink that he more readily gave way to some violent passion does not rebut the presumption that a man intends the natural consequences of his Act.

So, if on direct or circumstantial evidence an offence u/s 302, Indian Penal Code is established against the accused then merely because of heavy intoxication and/or want of motive or enmity of the accused that offence does not get reduced to an offence u/s 304, Part II, Indian Penal Code, as has been done by the Court below. The defence of drunkenness can be availed of only when the intoxication produces such a condition as the drunken man''s mind becomes incapable of forming the requisite intention for the offence. Evidence of drunkenness, falling short of proved incapacity to the above extent will not enable the accused to avail of the defence of drunkenness u/s 85 or 66, Indian Penal Code.

In the present case, no doubt, all the three eye witnesses have testified to the fact that both the accused and the deceased were heavily drunk. But there is nothing on record to show that although the accused was under the influence of drink he was so much under its influence that his mind was completely obscured by the drink or that he was completely incapable of knowing the natural consequences of his act. P.Ws. 1 and 2 have consistently stated that at the place of occurrence the accused asked the deceased to supply him Salap juice. At this the deceased replied that he would do so only when others gathered at that place. But the accused insisted on the immediate supply of Salap juice, due to which a quarrel ensued between them, and in course of that quarrel the accused stabbed the deceased with M.O. I at first on his chest and thereafter on his right theigh. He then immediately left that place with M.O. I in his hand. P.W. 3 corroborates P.Ws. 1 and 2 to the above effect in all material particulars except the statement of P.Ws. 1 and 2 to the effect that when the accused asked the deceased to extract Sa lap juice the deceased in reply stated that he would do so only when others gathered at that place. The above omission is not such as to create doubt about the veracity of this witness and his testimony in Court. His evidence gets corroboration from the consistent evidence of P.Ws. 1 and 2 on all material and important particulars, and his testimony has not at all been shaken in cross-examination. The facts established on the unassailed evidence of P.Ws. 1 to 3, that the accused stabbed the deceased in course of a quarrel which ensued on the later''s refusal to supply him Salap juice and he then immediately left that place with M.O. I in his hand, clearly indicate that the accused knew what he actually did at the place of occurrence, the nature of his act, and the consequence thereof. As there is nothing on record to establish that the accused was completely obscured by the drink and/or was beside his mind altogether at the time he stabbed the deceased, the mere fact that while being intoxicated he gave vent to some violent passion would not rebut the presumption that he intended the natural consequences of his acts. On the finding of the Court below that the accused stabbed the deceased on his chest and thigh as a result of which the deceased died at the spot'', and in the absence of evidence to prove that at the time when the accused committed the said act he was beside his mind altogether, the Sessions Judge, in the facts and circumstances of this case, was not justified in convicting the accused u/s 304, Part II, Indian Penal Code instead of u/s 302, Indian Penal Code of which the accused was charged in this case.

Mr. Swain''s contention, that in view of the concession of the learned Public Prosecutor in the Court below that the Respondent could be convicted u/s 304 Part II, Indian Penal Code he could not be convicted for any other graver offence in this Government Appeal, is not correct. A wrong concession of a Public Prosecutor on a question of law is of no consequence or avail. It is the duty of the Court to examine and see under what particular provision of the penal law the accused is liable, if at all, on the facts proved in each case, and the Court is not to act blindly on the submission to that effect and or the concessions of the counsel appearing for either of the parties. Moreover, this Court has the jurisdiction to rectify any such mistake in an appeal like this.

Apart from the above submission, Mr. Swain made a sincere endeavour to assail the finding of fact of the Court below that the accused stabbed the deceased and caused his death. In that connection he at first submitted that the F.I.R. in this case was not lodged at the police station at the earliest possible time which enabled the prosecution witnesses to make out a false case against the accused. In this case the F.I.R. was lodged by P.W. % 5 at 9.30 a.m. on the next day of the occurrence. It is the consistent evidence of the eye witnesses (P.Ws. 1, 2 and 3) that the occurrence took place on 15-9-1974 (Sunday) at about 3 or 4 p.m. The accused in his statement u/s 313, Code of Criminal Procedure does not deny the fact that an incident took place between him and the deceased at the aforesaid time. His version about this incident is that the deceased sustained the injuries accidentally by coming in contact with the knife which the accused raised in self defence when he was attacked by the deceased. P.W. 5 was informed about the incident by P.W. 1 on Sunday (5-9-1974) evening. From the F.I.R. it appears that the said information was given to P.W. 5 by about "Pejakhia time", i.e. by about 7.30 p.m., as mentioned in the F.I.R. After the said information was given, P.Ws. 1 and 5 went to see the dead body. The distance between the house of P.W. 5 and the place of occurrence is not known. It is not known what time P.W. 5 took in going near the dead body after getting the aforesaid information and when they came back to their village after seeing the deadbody. Judicial notice can be taken of the fact that the interior of the Subdivision of Malkanagiri is deeply forested in most part, and people in that area do not generally stir out of their villages at night to go to distant places for fear of wild beasts. The police station where the F.I.R. was lodged is about 5 kilometres away from the place of occurrence. There is nothing on record to show the distance of the police station from the house of P.Ws. 5. The F.I.R. was lodged at 9 30 a.m. on the next day of the occurrence after convening a Panchayati about the incident in the presence of P.W. 6, the Sarpanch. Because of the above facts we do not attach any weight on Mr. Swain"s comment on the lodging of the F.I.R. in the morning following the date of occurrence.

Mr. Swain further submitted the failure of the police to send the F.I.R. or a copy of the same to the concerned Magistrate immediately after recording the same creates suspicion against the prosecution case. The F.I.R. was signed by the S.D.J.M. on 18-9-1974 and that may be the date of the receipt of the F.I.R. in the S.D.J.M.''s Court. No doubt, u/s 157, Criminal Procedure Code, as soon as the Officer-in-charge of a police station has season to suspect the commission of an offence which he is empowered ,under Section 156, Code of Criminal Procedure to investigate, he shall have to forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report. In ,the case State v. Basudeb Senapati and Ors. 23 (1957) C.L.T. 449, it has been held:

It is the duty of the officer in charge of the police station to send a copy of the F.I.R. to the Magistrate having jurisdiction forthwith and then proceed with the case.

It is also observed that the Subdivisional Magistrate should insist upon the submission of the F.I.R. the moment it is received, and he should put thereon the date of actual receipt of the same in his Court. The provisions of Section 157, Code of Criminal Procedure and the observations made in this connection in the above-mentioned case are all prompted by salutary considerations that delay in sending the F.I.R to the concerned Magistrate may lead to distoration of that important document. In this case without any definite material as to when actually the F.I.R. (Ext. 9) was sent by the police to the concerned Magistrate and when it was received in the latter''s office and whether there was any reasonable cause for not sending the same in time, if any, no adverse inference against the prosecution or the police should he drawn. If the defence wanted to make out a point on this account, the I.O. should have been asked as to when he sent the F.I.R. to the Magistrate, and if he admitted the delay in this matter, he should have been given an opportunity to furnish his reasons for the delay. There was absolutely no cross-examination on this aspect and no effort was made to elicit any fact on this matter. That being so we are not inclined to draw any adverse inference against the prosecution merely on the fact that the F.I.R. was signed by the S.D.J.M. on 18-9-1974.

Mr. Swain''s submission that the absence of the name of the accused in column 9 of the inquest report (Ext. 4) clearly indicates that till the time of the inquest on the dead body on 16-9-1974 it was not known who actually had committed the offence. There is no substance in this contention either. The Police went to the place of occurrence after receiving the F.I.R. wherein the name of the accused and the manner in which the occurrence took place had been stated. 2 out at the 3 witnesses to the inquest. He not eye-witnesses to the occurrence and so they were not in a position to state first hand the name of the assailant.

Moreover, on the said omission in the inquest report written by the police officer the consistent evidence of the eye witnesses, which tallies on all material particulars with the first information about the incident lodged, at the police station and does not suffer from any commmentable deficiency, cannot be doubted.

Mr. Swain further commmented that the discrepancy between the number of injuries mentioned in the inquest report and those mentioned in the post-mortem report and the opinion of the doctor that the age of the injuries at the time of the post-mortem examination was about 24 hours would show that the doctor actually did not carry on the post-mortem examination but submitted faked report.

All the injuries which were found by the doctor on the dead body, as mentioned in the post-mortem report, were mentioned in the inquest report (Ext. 4). Apart from these, in the inquest report it is stated that the deceased had another stab wound on the right thigh and an abrasion on his right elbow. These later mentioned injuries are not mentioned in the postmortem report (Ext, 1). with regard to the alleged injuries on the right leg, not mentioned in the post-mortem report, the doctor P.W. 4 in his later report Ext. 3/1 opined that the alleged mark of injury on the right thigh was probably a blood stain which might have been wiped away by the time he received the dead body for post-mortem examination. P.W. 4 conducted the post-mortem examination on the dead body of the deceased on 17-9-1974, By then the dead body certainly had decomposed to a great extent, and so P.W. 4 possibly could not notice the very small and simple abrasion on the right elbow of the dead body. Moreover, nothing turns out on the failure of the doctor to mention about the said injuries in his post-mortem report as the accused practically has admitted that the stab injuries on the person of the deceased Including the fatal injury on his chest were caused at the time of the occurrence, and the consistent eye witness version clearly establishes that the deceased on being stabbed by the accused died at the spot. The statement of P.W. 4 that at the time of the past-mortem examination the injuries were 24 hours old is not of much consequence for reasons already stated above in this judgment.

The Court below on a proper consideration of the evidence on record has arrived at the unhesitating finding that it was the accused who stabbed the deceased on his chest and thigh as a result of which the deceased very soon died at the spot. P.Ws. 1, 2 and 3, the three eye witnesses to the occurrence, testify to the above fact in a very consistent manner, and their evidence to that effect has not also been challenged in cross-examination. In cross-examination, only the defence case that the deceased might have come in contact with the knife raised by the accused in self defence, as stated in paragraph 3 of this judgment was suggested which was very stoutly denied by all the three eye-witnesses. The nature of external injury No. 1 and the internal injuries corresponding to the same, as mentioned in paragraph 4 of this judgment, completely belies the defence case. The defence case, except being suggested to the eye-witnesses and stated by the accused in his statement u/s 313, Criminal Procedure Code, has no legs to stand upon. On a careful perusal of the evidence on record we are satisfied that the prosecution case about the occurrence, as stated in paragraph 2 of this judgment, is established beyond reasonable doubt on the evidence on record. On the above finding established on the evidence on record, and in the absence of evidence to prove at the time the accused committed the said act he was beside his mind altogether, the Sessions Judge was not justified in convicting the accused u/s 304 Part II, Indian Penal Code instead of convicting him u/s 302, Indian Penal Code of which the accused was charged in this case. Accordingly, the conviction of the accused u/s 304 Part II, Indian Penal Code has to be and is hereby set aside, and on the facts established in this case he is to be and is hereby convicted u/s 302, Indian Penal Code. As the accused belongs to a highly inflammable tribe and he stabbed the deceased in course of a quarrel as stated above, the ends of justice would be served it ,the accused is sentenced to undergo R.I. for like for his conviction u/s 302, Indian Penal Code.

In the result the Government Appeal is allowed. The accused is convicted u/s 302, Indian Penal Code and is sentenced thereunder to undergo R.I. for life.

P.K. Mohanti, J.

I Concur.

Appeal allowed.