The State of Orissa vs Mutuka Barik

K.B. Panda, J

The State of Orissa is in appeal against an order of acquittal passed by the Sessions Judge, Koraput, Jeypore in Sessions Case No. 86 of 1974, wherein the Respondent Mutuka Barik was facing trial u/s 302, Indian Penal Code on the allegation of having murdered his full brother Mutuka Taudu. Be it stated that though the Court acquitted him of the charge u/s 302, Indian Penal Code yet he convicted the Respondent u/s 304 Part II and sentenced him to undergo rigorous imprisonment for five years.

The prosecution case, in brief, is thus: On 8-8-1974 at about noon the deceased and the Respondent in a drunken state quarrelled with each other. Soon after, while the Respondent was husking paddy with the help of a Paurani (a thick club-like lathi with an iron ring at the lower end) (M.O.I.), the deceased came there and challenged the Respondent as to why he was abusing him. Also the deceased, it is alleged, gave one blow to the Tatti door of the Respondent with a fire-wood. At this, the Respondent gave a thrust to the deceased on the head with that Paurani as a result of which the deceased fell down. Thereafter the Respondent gave two more blows to the head and the back of the deceased with the M.O. I in consequence of which he died on the spot. When the neighbours appeared on the scene hearing the sounds of assault, they found the Respondent standing by the deceased with M. O. I. which had been stained with blood. When questioned, the Respondent admitted to have killed the deceased with M. O.I. P.W. 2, apprehending assault to others with M. O. I. snatched it away from the Respondent. But on the intervention of P.W. 3, he (P.W. 2) returned it to the Respondent on the Respondent asking for it to go to the Police Station with M. O. I to lodge information as to how he bad killed the deceased. Thereafter, the Respondent proceeded towards the Out Post with M. O. I. In the meantime, P.W. 5 the Ward Member came to the spot and sent information to the Sarpanch (P.W. 6) through P.W. 8. The Grama Rakshi and P.W. 8 were deputed to the Out Post for lodging information. But on their way they got information from a constable that the matter had already been reported at the Out Post. Thus the Grama Rakshi and P.W. 8 returned to their village. True to his ward, the Respondent with M. O. I. appeared at Ramanaguda Out Post and gave information that the deceased having assaulted him he killed the deceased with M. O. I. Finally, P.W. 12, the Officer-in-charge, submitted charge sheet against the Respondent u/s 302, Indian Penal Code with the result as aforesaid.

The Respondent in his defence having denied to have killed the deceased added that the deceased was a tuberculosis patient who was heavily drunk and as he entered into his house he struck against a bamboo rafter on his head and fell down dead. At that time he was husking paddy. As he found the deceased to have fallen down he came near him but found him dead. In the meanwhile, P.W. 2 came and on his asking the Respondent denied to have killed the deceased. However, P.W. 2 did not believe him and snatched away the M. O. I from him which he subsequently got back on the intervention of P.W. 3. However, he appeared with M. 0, I at the Out Post and lodged information that he had killed the deceased under the threat of P.W. 2 and the Ward Member (P.W. 5).

The prosecution examined 12 witnesses, out of whom P.W. 1 is the wife of the deceased and an eye-witness to the occurrence; P. ws. 2, 3 and 4 are post-occurrence witnesses who immediately appeared at the scene and found the Respondent with M. O. I. standing by the side of the deceased who had fallen down with head injuries; and P.W. 9 is the doctor who examined the deceased and submitted his post-mortem report (Ext. 1). The other witnesses are of formal nature.

The learned lower Court on the basis of the medical report (Ext. 1) ; on the evidence of P.W. 1- the eye-witness; the extra-judicial confession made by the accused to p. ws. 2 and 3; presence of the Respondent near the dead body holding M. O. I. and from his conduct, namely, production of M. O. I at the Out Post held that the Respondent killed the deceased with M. Order 1.

However, while discussing whether he was guilty u/s 302, Indian Penal Code he observed thus:

It is in evidence of P.W. 1 that the accused was heavily intoxicated at the time of the occurrence. This apart, the prosecution has not established any motive for the crime which could have prompted the accused to form an intention to kill the deceased. It has also not been established that there was any enmity between the accused and the deceased at any time. On the other hand, evidence discloses that the quarrel between the two brothers arose suddenly out of nothing, as a result of their intoxication and in course of the said quarrel, the accused killed the deceased by assault. No one would ever like to kill his brother without any rhyme or reason unless he is prompted to do so on account of previous enmity. In the present case no such enmity is established and yet the accused killed the deceased. It must therefore be found that at the time of the occurrence the accused was completely beside his mind due to intoxication and consequently the requisite intention under first three clauses of Section 300, Indian Penal Code cannot be attributed to him. But all the same it being a case of voluntary drunkenness know ledge has to be presumed against the accused in the same manner as if there was no drunkenness in view of the provision of Section 86, Indian Penal Code and it must be found that the act of the accused, causing the death of the deceased, comes u/s 304, Part II, Indian Penal Code.

It was contended on behalf of the State that this reasoning given by the learned lower Court in acquitting him of the charge u/s 302, Indian Penal Code is fallacious. We think, there is enough substance in this contention. Be it stated here that there is no evidence on record as to when or where the Respondent had taken liquor All that P.W. 1 states in cross-examination is that the accused was heavily intoxicated.

From this, a high degree of drunkenness cannot be assumed. Besides, this drunkenness was voluntary. u/s 86 of the Indian Penal Code, the Court has to gather from the attending general circumstances of the case the intents or the intention paying due regard to the degree of intoxication. If the man was beside his mind altogether for the time being, 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 to do the rule that a man is presumed to intend the natural consequences of his act or acts will apply. Ordinary drunkenness makes no difference to the knowledge with which a man is credited and if an accused knows what the natural consequences of his acts were he must be presumed to have intended to cause them. Intention in many cases is an inference from knowledge, but there may be cases in which a person by reason of intoxication may under certain circumstances be incapable of knowing the nature of a particular act he commits, or that it is either wrong or contrary to law although his state of intoxication may not be such as to render him incapable of knowing the nature of his acts. In such cases, in determining the quality of the offence, evidence may be necessary of a specific state of mind, which must be found as a fact and not assumed.

A Bench decision of this Court in Dasa Kandha Vs. The State, , it is stated thus:

Section 86, Indian Penal Code says that 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 a 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. The evidence is that the accused had taken some liquor voluntarily at the house of P.W. 1. But there is nothing in the prosecution evidence from which it can be inferred that he was in any state of intoxication at the time when he committed the murder. The state of intoxication, envisaged in 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 u/s 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.

In the instant case apart from what has been blurted out by P.W. 1 in cross-examination there is no evidence as to the degree of intoxication. Rather the conduct of the Respondent shows that he was not so intoxicated as to be ignorant of what he was doing. In that intoxicated state and after the quarrel with his deceased brother, he was doing his normal work, namely, husking paddy with Paurani (M. O. I). When the deceased approached in a challenging mood and gave a stroke to the Tatti door, he first gave a thrust with the M. O. I and as the deceased fell down dealt further blows on him. The evidence of the doctor is "5 or 6 blows must have been given on the deceased as would appear from my injury report". Again when the witnesses came, he confessed before them to have assaulted the deceased. What is still more significant is that, as M. O. I was snatched away by P.W. 3, he gave out that it might be returned to him so that he would go along with it to the Out Post. The evidence is also that he had really gone to the Out Post with the M. O. I. and had given a statement implicating him in the crime. All these show his normal conduct.

In another Bench decision of this Court in Sudhu Kumbhar Vs. The King, , it has been observed thus:

There is the general presumption that every man intended the natural consequences of his act and as pointed out by Ayling J. In re Mandru Gadaba A.I.R 1916 Mad. 489.

If the accused knew what the natural consequences of his act were, he must be presumed to have intended to cause them.

In other words, intention, may ordinarily be inferred from knowledge and if guilty knowledge can be presumed by virtue of Section 86, Indian Penal Code, it necessarily follows that guilty intention may also be reasonably inferred unless there are some other facts and circumstances to repeal such an inference.

x x x

It seems to be thus well established that where a drunken person commits an offence, there will be no presumption of guilty in section u/s 86, Indian Penal Code and such intention must be proved like any other fact in issue. But the Court may, after presuming the necessary guilty knowledge from that section on the assumption that he committed the act white in a sober condition, infer the guilty intention also if the other proved facts and circumstances justify the same. There may be different degrees of intoxication and if the evidence merely shows that the accused more readily gave way to violent passion because of his drunken condition it may be reasonably inferred that he intended the natural consequences of his acts. If, however, the evidence shows that he was in such a state of intoxication as to be incapable of forming the specific intent, drunkenness may be ground for altering the nature of the offence.

In this case, apart from that bald statement of P.W. 1 in cross-examination that the accused was ''heavily intoxicated''

there is no evidence either positive or circumstantial to support the inference that the Respondent was beside his mind due to intoxication. The circumstances referred to above, i. e. his conduct before, during and after the murder are clear indications of the fact that he was not beside his mind due to heavy intoxication. Merely because there was no intention to commit murder will not change the character of the offence. The reasoning given by the learned lower Court in assessing the case as one u/s 304 Part II, is ex facie faulty and therefore is set aside. The case comes squarely'' u/s 302, Indian Penal Code.

In the result, therefore, we allow the appeal, set aside the acquittal of the Respondent u/s 302, Indian Penal Code and convict him thereunder. However, we sentence him to ;undergo rigorous imprisonment for life which will meet the ends of justice in the instant case. If on bail, he is to surrender to undergo the sentence.

S. Acharya, J.

I agree.

Appeal allowed.