JUDGMENT
I.M. Quddusi, J.
1. This Appeal has been filed by the State against the impugned judgment and order dated 30-7-1987 passed by the Sessions Judge, Mayurbhanj, Baripada in Sessions Trial No. 95 of 1985 convicting the respondent under Section 304, Part I, IPC and sentencing him to five years’ R.I. No appeal has been preferred by the respondent-accused against the said order of his conviction. Although, no appeal has been preferred by the respondent (accused), during hearing of the appeal and scanning of the evidence on record we have also considered that aspect carefully.
2. Though charge was framed against the respondent for the offence punishable under Section 302, IPC, the learned Sessions Judge by the, impugned judgment and order convicted him under Section 304, Part I of the IPC on the ground that the accused suddenly got angry and in that state of mind dealt blows on the person of the deceased with a sharp cutting weapon which caused at least three fatal injuries of lengths varying from 10″-12″ on the vital parts and that such action of the accused would lead to the Inference that he intended to cause such injuries which were likely to cause death and accordingly he found the accused guilty of offence punishable under Section 304, Part I, IPC.
3. We have heard the learned Addl. Government Advocate for the State-appellant and Sri Ranjan Kumar Rana for the respondent.
4. The brief facts of the case are that on 3-5-1986 at 9 a.m. the deceased was ploughing his “Jagirdahi” land along with the informant (P.W. 1), who is the youngest son of his brother and was adopted by him as his son. The respondent-accused and first informant are the real brothers and their father was the real brother of the deceased. The deceased had no son and only one daughter who is married. The first informant P.W. 1, Debra Mahakud was living with him as his adopted son to look after him. The deceased and the father of the accused-respondent were living separately and possessing lands separately and the “jagirdaht” land was partitioned between them.
5. When the deceased and the first informant-P.W. 1 were so ploughing, thus “Jagirdahi” land, the respondent-accused came armed with a ‘Bala’ in his hand and asked the deceased as to whose land he was ploughing and the deceased replied that he was ploughing his own land, At this, the respondent got angry and hit the deceased with the ‘Bala’ repeatedly on the vital parts of his body, i.e. neck and head, as a result of which the deceased fell down and died on the spot shortly, Thereafter, the P.W. 1 ran away and informed the wife of the deceased (P.W. 2), about the Incident, and wife of the deceased went to the Ward Member and Intimated him about the unfortunate occurrence. On the same day, at about 2,30 p.m. P.W. 1 lodged FIR before the Police at his village, Police registered case and took up Investigation and during Investigation police seized the ‘gamuchhas’ (napkins) worn by the respondent and the deceased and also seized the ‘Bala’ used in the assault of the deceased at the instance of the respondent and the same were sent for examination to the Chemical Examiner at S.F.S.L., Rasulgarh, Bhubaneswar. The Medical Officer, Bibhuti Bhusan Mahanta, (P.W. 5) conducted post-mortem examination over the dead body of the deceased and prepared his report. On completion of investigation, charge-sheet was submitted against the accused.
6. According to the report of the Director and Chemical Examiner of the State Forensic Laboratory the extract of the blood found on ‘Bala’, earth and two napkins (gamuchhas) one worn by the deceased and the other by the respondent at the time of incident to have contained blood-stains of human origin of ‘B’ group and they tallied with each other.
7. According to post-mortem report, the Doctor conducting autopsy found the following ante-mortem external injuries:
1. Incised wound behind the neck nearly 12″ long extending from the left cheek to right temporal region cutting the second and third cervical vertebrae and the occipital bone.
2. Incised wound nearly 10″ long on the left temporo-parietal region, cutting left temporal and parietal bones and exposing the brain.
3. Incised wound nearly 12″ long on the frontal and left parietal region.
4. Incised wound on the left shoulder joint and left scapula region.
On dissection he found the following injuries.
1. The dura mater and arachnoid were torn. The spinal cord at the level of 2nd and 3rd vertebrae were transacted. The left carotid and vertebral arteries were cut. Muscles of the left side of the neck were cut.
2. Left shoulder Joint was dislocated. The doctor opined that the instrument used must have been sharp cutting, The injuries could be caused by the ‘Bala’ (M,0. 1), Excepting the injury to the shoulder, all the injuries were individually sufficient to cause death in ordinary course of nature and are homicidal in nature.
8. The sole eye-witness to the occurrence is P.W. 1, Debra Mahakud, who is adopted son of the deceased and real brother of the accused-respondent. He has narrated the incident and the following portions of He examination-in chief and cross- examination are very relevant for determination as to whether the offence committed by the respondent comes under category of 304, Part I, IPC or 302, [PC.
The accused asked the deceased as to whose land he was ploughing. The deceased answered that he was polughing his own land. Thereafter, giving threats hit the deceased with the “Bala” on his neck and head three or four times. The sharp side of the “Bala” hit the deceased. Suka fell down dead shortly after the assault.
As soon as the accused reached near the deceased, the bullocks ran away. Thereafter, there was some altercation between the deceased and the accused. When the accused came, I was really in front of the deceased, I stopped ploughing and the accused thereafter going near the deceased challenged him and then hit with the “Bala”.
9. The learned Sessions Judge inter alia held that P W 1 has given a graphic picture of what happened on the field and though he has been subjected to cross examination, nothing to discard his testimony has been elicited. He has further held from the evidence of P. W. 5 that one can find corroboration of the statement made by informant (P. W. 1) and there is a general corroboration of his statement regarding injury, from the F. I. R. lodged by him, Regarding seizure of a Gamuchha (Napkin) the learned trial Court has held that P. W. 1 had Identified the same to be worn by the accused on the date of occurrence and recovered, and the “Bala” and earth containing stains of human blood as wall as the chemical examination report has been found without any doubt, Bui he has held that the act committed by the accused would come under Section 304, Part I and not under Section 302,1, P. C. in this regard, the relevant portion of the opinion of the learned Sessions Judge is quoted as under ;
From what has been stated above, there is absolutely no room to doubt that it is the accused who caused the Injury which proved fatal, yet, the question remains if the case would come under Section 302.1. P. C. On a reading of the F. 1, R. It would be apparent that the accused suddenly got angry and in that state of mind dealt blows on the deceased with a sharp cutting weapon which caused at least three injuries of lengths varying from 10 to 12″. Causing or such injuries and that too on the vital parts would lead one to the inference that the accused intended to cause such injury which were likely to cause death. I accordingly find the accused guilty of the offence punishable under Section 304, Part-I, I. P. C.
Now it is to be considered by this Court as to whether the act of the respondent would constitute an offence punishable under Section 304, Part-1 or under Section 302 of the I. P. C. In this regard, the definition of Sections 299 and 300 are relevant to be perused, which are quoted as under:
299. Culpable homicide-Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
300. Murder-Except in the cases hereinafter excepled, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or
Secondly.- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-
Thirdly – If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or
Fourthly- If the person committing the act knows that it is so Imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1 .- When culpable homicide is not murder,- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control, by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisions:
First-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly- That the provocation is net given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly- That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation.- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Exception 2.- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
Exception 3.- Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception 5. – culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.
10. In the instant case, in the F. I. R. it has been mentioned that while the informant and deceased were engaged in ploughing, the respondent arrived there and asked the deceased as to whose land he was ploughing. When the deceased declared that he was ploughing his own land, the respondent threatened to kill him then and there and saying so dealt blows on the neck and head of the deceased and in the process he dealt about 4-5 blows, as a result of which the deceased sustained injuries, fell down and died instantaneously.
11. This version in the F. I. R. is corroborated by PW-1 in the witness box as already mentioned above. Therefore, the act of the accused-respondent was one under Sections 299 and 300 of I. P. C. without any exception, i.e., culpable homicide amounting to murder. In the recent case, reported in 2006 (6) Supreme 198 : 2006 Cri LJ 4057 Arun Nivalaji More v. State of Maharashtra, the Hon’ble Apex Court has laid down that:
in order to ascertain that “there was an intention to inflict that particular bodily injury” the enquiry should not be directed to find out whether the offender had intention to cause those very injuries to the internal organs of the body which were actually found to be there in medical examination. The intention has to be gathered from host of circumstances like the seat of injury, viz., the place or portion of the body where the injury has been caused, the nature of the weapon, its size and dimension or other attributes and the force applied in inflicting the injury. Being a question of fact it is difficult to lay down exhaustive tests to ascertain as to whether the offender intended to inflict that particular injury which is found on the body of the deceased but the features enumerated above will certainly play a vital role in arrival at a correct conclusion on the said issue.
The Hon’ble Apex Court has further held that:
Having regard to the meaning assigned in criminal law the word “knowledge” occurring in clause Secondly of Section 300, IPC imports some kind of certainty and not merely a probability. Consequently, it cannot be held that the appellant caused the injury with the intention of causing such bodily injury as the appellant knew to be likely to cause the death of Shri Ahirwar. So, clause Secondly of Section 300, IPC will also not apply.
“An offence would still fall within clause Thirdly even though the offender did not intend to cause death so long as the death ensures from the intentional bodily injury and the injuries are sufficient to cause death in the ordinary course of nature.”
12. The Apex Court has laid down that if the offence is such which is covered by anyone of the clauses enumerated in Section 299, I. P. C., but does not fall within the ambit of clauses Firstly to Fourthly of Section 300, IPC, it will not be murder and the offender would not be liable to be convicted under Section 302, IPC. In a case where the offence is such which is covered by Clauses (i) or (ii) mentioned above, the offender would be liable to be convicted under Section 304, Part-I, IPC as it uses the expression “if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death” where intention is the dominant factor. However, if the offence is such which is covered by Clause (iii) mentioned above, the offender would be liable to be convicted under Section 304, Part-II, IPC because of the use of the expression “if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death” where knowledge is the dominant factor.”
13. In the instant case, the evidence on record has established beyond any reasonable doubt that there was no sudden fight or sudden quarrel that resulted in the respondent losing temper, getting angry or provoked. Rather, it is clear from the un-impeached evidence of P. W. 1 that it was a one-sided attack by the respondent. Therefore, such an act would only come within the definition of culpable homicide amounting to murder, which is punishable under Section 302, I. P. C. and not under Section 304, Part-I, of the I. P. C.
14. In view of the facts and circumstances mentioned above, the conviction of the respondent under Section 304, Part-I I.P.C. is altered to one under Section 302 I.P.C.
15. Now we have heard learned Counsel for the parties on the question of sentence to be awarded under Section 302, I. P. C. Learned Addl. Government Advocate for the appellant and learned Counsel for the respondent both agree that the minimum punishment, i.e., imprisonment for life may be imposed. We are also of the opinion that in the facts and circumstances mentioned above, it is not a rarest of rare case in which a sentence of death which is to be imposed. Therefore, the respondent is sentenced to undergo imprisonment for life.
16. In the result, the appeal is allowed to the above extent. The order under appeal convicting the respondent under Section 304, Part-I, I. P. C. by the trial Court is substituted by the conviction under Section 302, I.P.C. and the respondent is sentenced to imprisonment for life, as mentioned above.