The State of Orissa vs Buda Muduli

K.B. Panda, J.—The Respondent Budu Muduli was facing trial u/s 302, Indian Penal Code on the allegation of having intentionally caused the death of his maternal uncle Sania Muduli. The learned Sessions Judge, Koraput, Jeypore acquitted him of the charge, but convicted him u/s 304, Part II, Indian Penal Code giving rise to this appeal by the State of Orissa.

The prosecution case in brief is this: On 1-10-1974, at about 7 a. m., the deceased was digging turmeric while his stepson Mangala Muduli (P.W. 7) was standing in front of their house adjoining the village road keeping he-calf for castration. The Respondent came by that way in an intoxicated state making hulla. The deceased asked the Respondent not to create hulla lest the he-calf might run a way due to fright. At this the Respondent got annoyed and gave kicks and slaps to Mangala Muduli. When the deceased protested against this high-handed action; the Respondent, it is alleged, gave out a threat to both of them saying to wait till be would return from his home. In fact he proceeded towards his home. At this, the deceased and his step-son (P.W. 7) 10 apprehended danger from the Respondent and got into their house and bolted the door from inside. True to the threat the Respondent arrived there with an axe, bow and arrows and attempted to force open the door striking it with the axe. However, the door did not yield. So he cut a hole in the wall that was made of twigs and entering into the room shot an arrow at the deceased and decamped. The arrow bit the left side chest of the deceased as a result of which he died instantaneously. At that time, most of the villagers were out except Soma Kirsani (P.W. 9) and the stepson of the deceased P.W. 7). P.W. 7 guarded the dead body for the whole night and the next day went to village Sambalpur and reported the matter to Ghadua Badnaik (P.W. 3) and Lachhmi Muduli (P.W. 4) who came to the spot. When questioned the Respondent admitted to have killed the deceased by an arrow shot. Then these people held a Panchayat where one Lachhmi Kirsani (P.W. 6) removed the arrow from the chest of the deceased. Thereafter the dead body and the arrow were removed to the P.S. where Lachhmi Kirsani P.W. 6) lodged information about the incident (Ex. 4) resulting in the charge sheet and trial of the accused u/s 302, Indian Penal Code with the result as aforesaid.

The Respondent denied having killed the deceased with an arrow and stated that the case has been falsely started against him.

The prosecution examined ten witnesses of whom p. w. 1 is the doctor and P.Ws. 7 and 8 are the two eye-witnesses to the occurrence. P.WS. 3, 4, 5 and 6 are witnesses to the extrajudicial confession of the Respondent.

The learned lower Court held that the Respondent caused the death of the deceased by shooting an arrow at him on the basis of evidence that there was a quarrel before the occurrence ; that the Respondent confessed his guilt before P.WS. 3, 4, 5 and 6 ; that the Chemical Examiner''s report (Ext. 12) showed existence of human blood in M. O. I: and that the doctor (P.W. 9) opined that it was a homicidal death due to arrow shot. Yet the learned lower Court acquitted the accused of the charge u/s 302, Indian Penal Code on the following observations:

I shall now turn to discuss whether the accused can be convicted u/s 302, Indian Penal Code, P.W. 7 states in paragraph 5 of his evidence that the accused was heavily intoxicated and was unable to take care of himself at the time of the occurrence. Further, he states that the accused was shouting and talking incoherently like a drunkard. He also states that for nothing the accused came and gave him kicks and slaps. P.W. 4 states that the accused was never in bad terms even prior to the occurrence and yet without any rhyme or reason he killed the deceased by his arrow shot. All these would clearly suggest that the accused at the time of the occurrence was beside his mind and so 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 case of voluntary drunkenness knowledge has to be presumed against the accused in the same manner as if there was no drunkenness. By attributing the requisite knowledge to the accused and on the facts and circumstances of the case as stated above, 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. Such being my finding, the accused has to be convicted u/s 304, Part II, Indian Penal Code and not under

It was contended on behalf of the State that this reasoning adopted by the learned lower Court is fallacious, in as much as that there is no evidence to show that the Respondent was so deeply intoxicated that he was ignorant of the consequences of his own act.

We think, this contention is not barren of substance. The law on the subject is no longer res integra. The last word on the subject has been said in the case of Basdev Vs. The State of Pepsu, . Following the same, a Division Bench of this Court in Dasa Kandha Vs. The State, , have held thus:

The state of intoxication, envisaged 10 Section 86, Indian Penal Code must be such as would render the accused incapable of forming the specific intent essential to constitute the crime Therefore, mere proof of drinking some liquor would not be proof of intoxication and each man has his own level of intoxication. To substantiate the plea based upon Section 86, Indian Penal Code the onus is squarely on the shoulder of the accused. It was the duty of the accused to lead evidence independently or to bring out by cross-examination from prosecution witnesses that he was in such a state of drunkenness that he could not be in a position to form any intent essential to constitute the crime of murder

This is the consistent view of this Court and therefore it was, incumbent on the defence to establish as to how he was so drunk that he was unable to know what he was about to do. In the instant case, there is absolutely no evidence for such a finding, Apart from the bare statement of P.W. 7 that the Respondent was highly intoxicated, there is no evidence as to when or where and the quantity of liquor he had taken. His subsequent conduct in taking offence at the protest of the deceased for assaulting P.W. 7, though might be taken to be a quarrelsome conduct, natural with people who are drunk, yet his subsequent conduct shows as if he was a normal man. To instance a few of those circumstances, it may be said that he gave a threat to the deceased and P.W. 7 to wait till he came from his home. True so his words he went to his house and appeared with an axe and bow and arrows. He made a persistent attempt to break open the door with the axe, but failed in the same. Thereafter he cut a hole in the wall. What is more significant is his aiming the arrow which hit the left chest of the deceased resulting in his death. A drunken man is unsteady in his gait. For such a man to pick up bow and arrows and aim at an object is something inconceivable. Further after shooting the arrow he Immediately decamped from the spot, as a person conscious of his guilt. All this conduct is incompatible with the theory that he was so deeply drunk that he was unable to know consequences of his own act.

In that view of the matter, we would hold that the approach of the learned Sessions Judge in acquitting the accused of the charge u/s 302, Indian Penal Code merely on the theory of intoxication without positive proof of the fact that he was so drunk that he was oblivious of what he was doing, is ex facio untenable both on fact as well as in law.

Accordingly, we would set aside the order of acquittal u/s 302, Indian Penal Code and convict the Respondent thereunder. However, in the circumstances of the case, a sentence of imprisonment for life would meet the ends of justice.

In the result, the appeal succeeds and the Respondent is convicted u/s 302, Indian Penal Code and sentenced to imprisonment for life. If on bail, the Respondent is to surrender to undergo the sentence.

S. Acharya, J.

I agree.

Appeal allowed;