State of Orissa vs Prahaliad Dehury

B. Panigrahi, J.—This Government Appeal filed by the State challenges the conviction of the Respondent Prahallad Dehury u/s 304, Part I, IPC for committing an act with the intention of causing death or of causing such bodily injury as was likely to cause death to one Dutia Dehury and u/s 323, IPC for causing simple injury to P.W.4. According to the Appellant, the Respondent should have been convicted u/s 302. IPC instead of Section 304, Part I, IPC.

The prosecution story presented during trial is as follows:

P.Ws. 3 and 4 and their family members used to collect forest produce such as gums and herbal incense extracted-from sal trees, and sell those produces to the Respondent and other purchasers. There was some amount of discontentment among the Respondent and other accused persons for the reason as P.Ws. 3 and 4 were not selling the forest produce to them exclusively, instead used to sell such produces to other customers at a higher rate.

On the date of incident, i.e. on 7.3.1985 while P.Ws. 3. 4 and 5 returning from the jungle with the forest produce they sold gum to Rasa Ho at the rate of Rs. 5/- per kg. and returned to their house with balance 2 kgs. of gum which the Respondent and other accused persons purchased from them at the rate of Rs. 3.50 per Kg. so there was brow beating and exchange of hot words between them. At about evening time on the same day P.W.3 heard some unsavory language being uttered by accused Madhab and Respondent Prahallad at P.W.4. who came out from his house. Accused Madhab and Respondent Prahallad picked up a lathi lying near the ban and assaulted P.W.1 by it. The other accused persons reached at the spot in quick succession and all of them assaulted P.W.4. P.W.5 and the deceased Dutia subsequently arrived there and wanted to intervene and separate them. But the Respondent Prahallad dealt piercing blows by means of a knife on the head and body of the deceased, as a reason whereof, he immediately fell down. Subsequently, all other accused persons toe assaulted him. When P.Ws. 4 and 5 went near Dutia to protect him the Respondent assaulted P.W.4 by the knife. Therefore, he also fell down and the other three accused persons assaulted him with sticks. Dutia after receiving bodily injuries. instantaneously died at the spot. The matter was reported on 7.3.1985 at Karanjia Police Station. The O.I.C., Karanjia Police Station on receiving the report immediately proceeded to the spot, held inquest over the dead body of Dutia. recorded the statement of witnesses, seized the blood stained earth and sample earth and the knife (M.O.II) from the possession of the Respondent Prahallad u/s 27 of the Evidence Act. He also despatched the dead body for post mortem examination and on completion of investigation, charge-sheet had been placed against the Respondent and all other accused persons.

The defence plea taken in the trial Court was one of denial of the occurrence. The Respondent and other accused persons also claimed to have been falsely implicated in the case. The trial Court on evaluation of the evidence while acquitting the other accused persons, however, convicted the Respondent u/s 304, Part I, IPC and u/s 323, IPC and sentenced him to undergo R.I. for five years and three months respectively. Since the Respondent was acquitted of the charges u/s 302, IPC, the State has filed this appeal challenging the said order. However, the acquittal of the other accused persons has not been assailed in this appeal.

The point raised in this appeal lies within narrow compass as to whether the Respondent could be convicted u/s 302 or u/s 304. Part I. IPC. Since the trial Court has already believed the prosecution story that the Respondent has assaulted Dutia by means of a knife and lathi, there is hardly any scope for us to arrive at a contrary conclusion, particularly when there has been no appeal filed by the Respondent challenging the conviction u/s 304. Part I. IPC. The learned trial Judge believed the ocular statement of P.Ws. 2, 3, and 4. P.W.3 is the son of the deceased, who deposed that the Respondent was armed with a knife (M.O.II) by means of which he dealt blows on the deceased, as a reason whereof the deceased sustained bleeding injuries on his head, chest and hand. P.W.1, the doctor who conducted autopsy over the dead body of the deceased had found one incised wound on the parietal region transversely, i.e. horizontally placed on that area having dimension of 4" � 1". He further noticed a lacerated wound 1�" � �" � bone deep on the occipital region. From the opinion of the P.W.1. it appears that injury Nos. 1 and 5 were found to be piercing wounds caused by a sharp cutting pointed weapon like knife (M.O.II).

Ms. U.R. Bastia, learned Counsel appearing for the Respondent states that the aforesaid injuries could not be possible by M.O.II which was seized from the possession of the Respondent as deposed by P.W.1. Therefore, the weapon which was really used for committing such offence has not been seized. It is the settied principle of law that while comparing the medical evidence with the ocular evidence, the latter shall prevail over the other. Since P.W.3 saw the Respondent inflicting such injuries by M.O.II. even though P.W.1 opined that the juries could not be possible by M.O.II. such opinion is of little significance while determining the nature of injuries on deceased Dutia.

The evidence of eye-witnesses, namely, P.Ws. 2 to 4 does not per se suffer from any serious infirmities inasmuch as they were closely related to the deceased and they also received injuries in course of the same transaction. Therefore, their presence at the spot can hardly be doubted.

The next question which arises for our consideration is whether the offence alleged to have been committed by the Respondent falls within Section 299 or Section 300, IPC. Learned Sessions Judge was of the view that since there was no intention on the part of the Respondent to cause the death of Dutia, he should be convicted u/s 304, Part I, IPC. From the nature of injuries on Dutia, it is noticed that he received 5 injuries on different parts of the body. Injury Nos. 1 and 5 were sufficient in ordinary course of nature to cause death, in this background, it is to be considered whether the Respondent had any intention to cause death of Dutia or not. The expression ''intention means a conscious state in which mental faculties, are aroused into activity and summoned into action for the purpose of achieving a conceived end. Therefore, in case of ''intention'' mental faculties are projected in a set of direction. Intention need not necessarily involve premeditation. Whether there is such an intention or not is a question of fact, in this regard, we are buttressed by the judgment of the Supreme Court in the case of Jai Prakash Vs. State (Delhi Administration), . The Supreme Court while relying on its previous judgments has however held:

xxx However, as pointed out in Virsa Singh case, the weapon used the degree of force released in wielding it. the antecedent relations of the parties, the manner in which the attack was made that is to say sudden or premeditated, whether the injury was inflicted during a struggle or grappling, the number of injuries inflicted and their nature and the part of the body where the injury was inflicted are some of the relevant factors xxxx

it was further observed that when an accused inflicts a blow (sic) a deadly weapon, the presumption is that he intended to inflict that injury for causing death of a person, but there may be some circumstances which rebut such presumption and throw a doubt about the application of Clause Third of Section 300, IPC it is to be found whether the accused had the intention to cause the particular injury, which is a subjective enquiry, and once such intention is established, and if the intended injury is found objectively to be sufficient in ordinary course of nature to cause death, then the third clause shall be attracted.

In a recent judgment of the Supreme Court in the case of Abdul Waheed Khan @ Waheed and Others Vs. State of Andhra Pradesh, , it has been held as follows:

The ingredients of clause "Thirdly" of Section 300, IPC were brought out by the illustrious Judge in his terse language as follows:

To put it shortly, the prosecution must prove the following facts before it can bring a case u/s 300, "thirdly".

First, it must establish, quite objectively, that a bodily injury is present.

Secondly, the nature of the injury must be proved. These ate purely objective investigation.

Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say that it was not accidental or unintentional, or that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further and,

Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This pan of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

In the present case, the grounds for which the learned Judge was inclined to record a conviction against the Respondent u/s 304, Pan I IPC was that the occurrence took place during a quarrel. but on analysis of the evidence, we found that there was no quarrel between the deceased and the Respondent alongwith other accused at the time of incident Rathar the Respondent and his other associates went near the house of P.W.4 and questioned his authority for disposal of the forest produce At that time he and his family members including the deceased were arm-less. There has been no evidence that P.Ws. 3, 4, and 5 formed an unlawful assembly. The positive evidence placed before the trial Court was that the Respondent was holding a Knife and had inflicted, piercing blows on the head of the deceased, which presumably would cause death in ordinary course of nature. Therefore, he had the intention to do away with the life of the deceased

Accordingly, while dis-agreeing with the reasonings of the learned Sessions Judge we allow the Government Appeal, modify fine order of conviction passed against the Respondent from Section 304, Part I, IPC to one u/s 302, IPC and sentence him to undergo imprisonment for fits. His conviction u/s 323, IPC is sustained. The sentences shall run concurrently. The Respondent be taken into custody forthwith.

P.K. Misra, J.

I agree.