State of Orissa vs Ratnakar Sahu

S. Acharya, J.—Government Appeal No. 95/77, on special leave, is against the judgment passed by the Court below acquitting the accused-Respondent of the charges under Sections 302 and 29-1, Indian Penal Code framed against him. The accused-Respondent, stood his trial in the Court below for alleged commission of murder by intentionally causing the death of Narendra Sahu. He was also charged in the same trial for an offence u/s 294, Indian Penal Code for allegedly abusing Narendra Sahu in filthy language in a public place. The Court below, while acquitting the accused of both the aforesaid charges, has convicted him only u/s 325, Indian Penal Code and has sentenced him thereunder to undergo R.I. for 3 years.

The prosecution case, in short, is that in the morning hours of 22-10-1975 the deceased. Narendra Sahu by pelting a stone, injured one eye of a he goat belonging to the accused when the said goat was grazing in the field of the deceased where he bad grown blackgram. When the accused came to know about the infliction of the injury of his goat by the deceased, he (the deceased) assaulted the field servant (p. w. 12) of the deceased. Thereafter the accused came to the village street with the bamboo Lathi M. O. I. and there he held cut threat of assault to the deceased as the latter had injured one eye of the former''s goat. Some time thereafter, the deceased came to the village street followed by his mother p. w. 10. On seeing them the accused came running towards the deceased with the M. O. I. and with that Lathi he dealt a blow on the left parietal region of the deceased as a result of which he fell down and immediately became unconscious. P. w. 10, the mother of the deceased, immediately lifted the deceased to her lap and pressed the wound on his head in order to stop blood oozing out of the wound. The accused after assaulting the deceased ran away from that place with the Lathi M.O.I. Thereafter the injured was taken to his house, he was given first aid there, but as he did not regain consciousness he was taken to the Pastikudi Primary Health Center. There p. w. 3 admitted the injured in that hospital at about 3 p.m. on the same day, and the injured died there at 7.45 a.m. on 23-10- 1975. After inquest on the dead body, the doctor p. w. 14 as per police requisition held post-mortem examination on the dead body of the deceased. After investigation and commitment proceedings the accused-Respondent was tried for offences under Sections 302 and 294. Indian Penal Code, but the Court below has convicted him only u/s 325. Indian Penal Code as-stated above.

The accused has denied the allegations made against him and has taken the plea that he has been falsely implicated in this case by interested persons inimically disposed towards him.

Criminal Revision No. 316 of 1977 was filed by p.w. 1, who lodged the F.I.R. in this case, praying for setting aside the order of acquittal and to convict the accused for the charges framed against him. As the learned Government Advocate argued the appeal in all its aspects it was not considered necessary to hear the counsel for the Petitioner in the above Criminal Revision.

Of the 15 prosecution witnesses examined in this case, P.Ws. 1, 4, 8, 9 and 10 are the eye witnesses to the occurrence. P. w. 11 is a witness who saw the accused with a Lathi like. M.O. I in his hand and his wife running away towards their house after the occurrence. P.w. 3 is the doctor who at first examined the injured Narendra in the Pastikudi Primary Health Centre, and p. w. 14 is the doctor who held the post-mortem examination on the dead body. P. w. 7 is a witness to the seizure of the Lathi M.O.I which was discovered from the hay-stack belonging to the accused on the information given by him after his arrest. P.ws. 6 and 12 are the witnesses who speak about the pelting of a stone by the deceased at the accused''s goat in the morning of the date of occurrence. P. w. 12 also states that the accused assaulted him that morning as the goat sustained an injury in its eye. The other witnesses are formal witnesses.

On the medical evidence (p. ws 3 and 14) it is established beyond reasonable doubt that the death of the deceased was homicidal. That aspect was not challenged by the counsel appearing for the Respondent.

It is stated in the impugned judgment that the learned defence counsel candidly admitted in the Court below that there were sufficient and cogent materials on record to a establish the fact that the accused inflicted a Lathi blow on the left parietal lobe of the deceased. The Court below has also satisfactorily sifted the evidence on record on this aspect of the matter, and on a convincing discussion and consideration of the same has rightly arrived at the finding that there is sufficient and cogent evidence to make out a case against the accused to the effect that "on the occurrence day the accused on being infuriated on account of the Injury caused to the eye of his goat by the deceased assaulted him on the village street by means of a Lathi as a result of which the latter sustained injury on his left parietal lobe and fell down unconscious and died at the hospital in spite of the medical aid given to him there." On a perusal of the evidence on record and its discussion in the impugned judgment we are convinced that the said finding of the Court below and the above-mentioned concession of the defence counsel are well founded. Mr. Patnaik, the learned Counsel for the accused-Respondent in this appeal, did not also make any effort or submission to assail the aforesaid finding of the Court below.

It is contended by the learned Government Advocate that in view of the findings of the Court below and the facts established on the evidence on record the charge u/s 302. Indian Penal Code of which the accused was tried, is amply established and the finding of acquittal in respect of the said charge is absolutely perverse arid based on illegal and unsound ground and reasoning.

On the other hand, Mr. Patnaik, the learned Counsel fat the accused-Respondent, while supporting the conviction of the Respondent u/s 325, Indian Penal Code, submits that in the facts and circumstances of this case at best a case u/s 304, Part II, Indian Penal Code can be said to have been made out against the accused, and in no view of the matter the charge u/s 302, Indian Penal Code is established against the accused.

The Court below hag arrived at the finding that the accused inflicted a Lathi blow on the vital part of the deceased''s body (on the head) as a result of which the latter sustained injuries on his left parietal lobe and fell down unconscious and died at the hospital in spite of medical aid. When p. w. 3 admitted the deceased in the Pastikudi P.H .C. he was unconscious and he remained unconscious till his death. Apart from other injuries, the deceased had an incised looking wound 3/4" x 2" x 2" on the left side of the scalp, bleeding was continuing from the wound. P. w. 14, who held the post-mortem examination on the dead body, found that there was congestion of the membrane over the middle and posterior of the left parietal lobe with extravasation of blood, congestion of the brain matter and haemorrhage from the membrane of the brain. After arriving at the aforesaid finding and having noted the aforesaid facts in the impugned judgment, the Court below acted illegally in convicting the accused only u/s 325, Indian Penal Code by saying that the accused fled away from the spot as soon as he dealt the blow and did not attempt to give any more blow on the victim; he dealt the said blow on the head of the deceased in an excited mood on account of the aforesaid goat affair, he was not armed with any deadly weapon, and had never intended to kilt the deceased but simply intended to assault him being in an emotional state of mind. 00 the facts established in this case it was illegal for the Court to convict the accused only u/s 325. Indian Penal Code merely on the above considerations.

The learned Government Advocate submits that on the evidence on record it is established in this case that the accused intentionally inflicted the injury on the head of the deceased, that injury was sufficient in the ordinary course of nature to cause the death of the deceased, that injury was neither accidental nor unintentional, and that being so, the case comes within the Third Clause of Section 300, Indian Penal Code. There is no doubt that on the evidence on record it is established beyond reasonable doubt that the accused intentionally dealt a Lathi blow on the bead of the deceased as a result of which the latter sustained the above-mentioned injuries on his head and died on the following morning. The Court below has arrived at that finding, and Mr. Patnaik, the learned Counsel for the Respondent, does not assail the same. It is now well settled that to put a case under the 3rd clause of Section 300. Indian Penal Code the prosecution must prove the following facts:

(i) Firstly, it must establish quite objectively that a bodily injury is present;

(ii) Secondly, the nature of the injury must be proved; and

(iii) 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 those elements are proved to be present, the enquiry proceeds further to see whether it has been proved (fourthly) that the injury of the type just described made up of the three above mentioned elements was sufficient to cause the death of the injured in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once the above four elements are established by the prosecution the offence is murder under clause "Thirdly" of Section 300, Indian Penal Code.

It has been observed by their Lordships of the Supreme Court Virsa Singh Vs. The State of Punjab, , that

It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no know ledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional.

In the present case before us, the 1st, 2nd and 3rd above-mentioned elements are established by the prosecution beyond reasonable doubt. Mr. Patnaik does not seriously question this aspect of the matter. But he submits that in this case there is no convincing proof of the fact that the injury inflicted by the accused on the head of the deceased "was sufficient" in the ordinary course of nature to cause the death of the deceased. P. w. 14, who held post-mortem examination on the dead body of the deceased, does not state in clear and categorical terms that the said injury was sufficient in the ordinary course of nature to cause the death of the deceased. In his examination-in-chief he merely stated that the aforesaid injury is the cause of the death and that "the said injury may cause immediate death."

Mr. Government Advocate, however, contends that on the nature of the injuries on the deceased''s head and the statement of p. w. 14 that the death of the deceased was due to clotting of blood in the membranes of the brain, it is established that the injury on the head of the deceased was sufficient in the ordinary course of nature to cause his death. Nothing prevented the doctor who held the post-mortem examination to state in clear terms that the injury was of that nature. It was necessary for the prosecution to prove that fact in order to bring the case under the third clause of Section 300, Indian Penal Code. In the absence of an unequivocal statement by the doctor to that effect I consider it risky in this case and without anything else to that effect to hold that the injury certainly was sufficient in the ordinary course of nature to cause the death of the deceased.

While under clause "thirdly" of Section 300, Indian Penal Code the expression used is "sufficient in the ordinary course of nature to cause death", in Part I of Section 304, Indian Penal Code the expression used is causing such bodily injury as is likely to cause death" and in Part II of that section the expression used is act done with the knowledge that it is likely to cause death." In my opinion, if the injury caused is of a higher degree of likelihood to cause death then that would be covered by the expression "sufficient in the ordinary course of nature to cause death" and if the injury caused is of a lower degree of likelihood then that would come under one of the expressions used in Part I or Part II of Section 304, Indian Penal Code. The observations made in paragraphs 19 and 20 of the Bench decision of the Rajasthan High Court reported in Gulab Singh Vs. State of Rajasthan, support my above view. Kapur Singh Vs. State of Pepsu, may also be seen).

Now it is to be seen whether the offence committed by the accused comes within Part I of Part 11 of Section 304, Indian Penal Code.

The Court below has placed reliance on the testimony of the eye witnesses p. ws 1, 4, 8, 9 and 10. In the Court below and also in this Court their evidence was not assailed in any manner. The Court below nightly finds and the defence counsel in the Court below fairly admitted that there were cogent and sufficient evidence and material on record against the accused that he inflicted the Lathi blow on the left parietal lobe of the deceased.

On their evidence it is established that the deceased on receiving the Lathi blow on his head immediately fell down unconscious on the ground. P. w. 3, the doctor who treated him in the hospital has stated that when the deceased was admitted in the hospital, he was unconscious and he died in that unconscious state on the following morning. On the prosecution evidence it is established that due to the incident relating to the accused''s goat prior to the occurrence as mentioned above the accused assaulted p. w. 12 who was then working as a field servant of the deceased and not being satisfied with that the accused came to the village street in a highly infuriated and enraged mood and being armed with a Lathi in his hand he started scolding and abusing the deceased, holding out threats of assault on him even before he came to that place. It is also established on the testimony of the eye witnesses that as soon as the deceased came near the house of p. w. 4. the accused rushed towards the deceased in that infuriated temper and with the Lathi in his hand he dealt a blow on the head of the deceased as a result of which he fell down unconscious and blood started oozing out from the injury caused thereby on his head. So t cannot be said that the assault by the accused on the deceased was unpremeditated. From the evidence on record it is absolutely clear that the accused was determined from before to assault the deceased, and as soon as the deceased came within his sight, he assaulted him with a Lathi right on the middle of his head as a result of which he sustained a severe injury of the nature described above. On the facts established in this case it has to be said that the accused had the intention to cause a bodily injury to the deceased as was likely to cause his death though, for reasons stated above, It cannot be sad that the said injury inflicted by the accused on the deceased was sufficient in the ordinary course of nature to cause death. On the facts of this case the accused has to be convicted u/s 304 Part I, I.P.C.. If the accused did not at all have the intention to inflict the said bodily injury on the deceased which was likely to cause his death and the act of the accused was done only with the knowledge that it was likely to cause the death of the deceased, then his case could have come under Part II of the said section. On the evidence on record it is absolutely clear that the accused was determined to assault the deceased with the Lathi in his hand and he actually dealt the aforesaid Lathi blow on the vault of the deceased''s head as a result of which he immediately became unconscious and succumbed to the said injury. On the above facts, this case comes clearly within the first part of Section 304, Indian Penal Code. The decision reported in Ifatulla and Others Vs. Emperor, supports the above view.

Mr. Patnaik, the learned Counsel for the Respondent cited some decision of this Court there accused persons were convicted u/s 304, Part II, Indian Penal Code for giving a Lathi blow (In the head of the deceased in those cases. In all those cases it was held, on the facts of and the evidence in those cases, that it was clear that the accused caused the bodily injury to the deceased ''with the knowledge that it was likely to cause his death, and the accused did not have the intention to cause the death or to cause such bodily injury as was likely to cause the death''. In all those cases the requisite intention to bring the case under Part I of Section 304, Indian Penal Code was found wanting on the facts of those cases and so the conviction was under Part II of Section 304, Indian Penal Code. But in the facts and circumstances of this case as stated above, I am firmly of the opinion that the conviction of the accused has to be under the first part of Section 304, Indian Penal Code.

The uncorroborated statement of p. w. 8, that the accused and his wife and the deceased and his wife exchanged bot words and abused each other in filthy language just before the occurrence would not bring the case of the accused within any of the general exceptions in Chapter IV of the Indian Penal Code or within any of the special exceptions provided u/s 300, Indian Penal Code. Moreover, on the prosecution evidence that the deceased had a light Kendu stick in his hand at the time of the occurrence, a case of right of private defence of the accused''s body cannot be successfully pleaded. Neither in the trial Court nor in this Court the defence made any effort in the above directions.

On the above discussions and considerations the conviction of the accused u/s 325, Indian Penal Code has to be set aside, and instead, he has to be and is hereby convicted u/s 304, Part I, Indian Penal Code. In the circumstances of this case ends of justice would be served if the accused is sentenced to undergo R.I. for 7 years for the said offence.

In the result, therefore, the conviction of the accused u/s 325, Indian Penal Code and the sentence passed against him thereunder are set aside, but instead he is convicted u/s 304, Part I, Indian Penal Code, and is sentenced thereunder to undergo R.I. for 7 (seven) years.

The Government Appeal and the Criminal Revision are accordingly partly allowed.

N.K. Das, J.

I agree.

Partly allowed.