LOKNATH BEHERA ALIAS KHOKAN v. STATE — 1984 DIGILAW 66 (ORI)

BEHERA, J. ( 1 ) THE appellant stood his trial being charged under Section 302 of the Indian State Penal Code (the Code, for short) with having intentionally and knowingly caused the death of Jogi Behera (hereinafter referred to as the deceased) and a co-accused person, namely, Govinda Behera, stood charged under Section 323 of the Code for causing hurt to Maheshwar Behera (P. W. 1 ). The co-accused person was acquitted of the charge. The appellant was acquitted of the charge of murder and convicted for culpable homicide not amounting to murder under Section 304, Part I of the Code and sentenced thereunder to undergo rigorous imprisonment for a period of four years by the Court of Sessions, after acceptance of the case of the prosecution, not only on the basis of the evidence adduced by it but also from the admission made by the appellant, that on October 19, 1978, in the evening time, the appellant, then in his teens, dealt one blow by means of a lathi (M. O. I.) after a sudden quarrel and on the spur of the moment on the chest of the deceased which caused fracture of a rib, the fractured rib causing rupture of the spleen resulting in the death of the deceased. The learned trial Judge found The prosecution evidence will go to show that there was a sudden fight between the parties on account of the quarrel between the son of Panu and Mahesh. , war (P. W. 1) and it cannot be said that either Panu or his son Loknath the accused made a consistent plan to commit murder on account of previous enmity or grudge. Further, it has also been seen from the prosecution evidence that accused who is only aged 19 years gave only one blow on the chest of the deceased and never took any undue advantage of his position and did not treat the deceased Jogi cruelly. There for the sum total of the prosecution evidence established that Jogi met his death in the course of a sudden fight and the accused had no premeditation to commit murder. Further, it bas been established that the accused had not taken undue advantage and has not treated the deceased cruelly as he gave only a single blow. Hence the facts of this case will come under Exception (4) to Section 300 of the Indian Penal Code. Further, it bas been established that the accused had not taken undue advantage and has not treated the deceased cruelly as he gave only a single blow. Hence the facts of this case will come under Exception (4) to Section 300 of the Indian Penal Code. But it must be pointed out that Khokan gave a blow on the left side chest of the deceased and by that blow the 10th rib was ruptured and it perforated the spleen and Jogi met his death. As I have already determined that accused Lok Nath has committed culpable homicide not amounting to murder and he caused the death with the intention of causing such bodily injury as is likely to cause death, he must be found guilty under Section 304, Part I of the Indian Penal Code and not under Section 302 of the Indian Penal Code for which he stood charged. ( 2 ) APPEARING on behalf of the appellant, Mr. S. C. Mohapatra has not assailed the finding recorded by the trial court that the appellant had dealt one blow on the chest of the deceased which ultimately proved fatal. He has challenged the legality of the conviction of the appellant under Section 304, Part I of the Code and has urged that the appellants act would amount to causing hurt punishable under Section 323 of the Code although unfortunately there had been a fracture of the rib and the fractured rib ruptured the spleen causing the death of the deceased. It has been submitted on behalf of the State that from the evidence adduced and in the circumstances in which the appellant bad assaulted the deceased it could not reasonably be said that the act by which death was caused was done with the intention of causing death or of causing such bodily injury as was likely to cause death, but the act done by the appellant was with the knowledge that it was likely to cause death and therefore, he could be convicted under the second part of Section 304 of the Code. It has been contended that if this Court holds that the appellant had no knowledge that his act was likely to ca use death, the appellant would be held guilty of voluntarily causing grievous hurt punishable under Section 325 of the Code. It has been contended that if this Court holds that the appellant had no knowledge that his act was likely to ca use death, the appellant would be held guilty of voluntarily causing grievous hurt punishable under Section 325 of the Code. ( 3 ) IN view of the submissions made at the Bar, this Court is to determine the nature of the offence committed by the appellant keeping in mind the provisions of the Code and the principles of law applicable to such cases. ( 4 ) SECTION 304, Part I applies to a case where the act by which death is caused is done with the intention of causing death or causing such bodily injury as is likely to cause death. The second part-thereof applies when to be 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. ( 5 ) THE mental element in culpable homicide is one of intention or knowledge. By intention is meant the expectation of the consequence and it does not necessarily involve premeditation. A man would expect the natural consequences of his act and therefore, in law, is presumed to intend them. If he performs some act, either expecting that death may be the consequence thereof or expects a dangerous injury likely to cause death to be the consequencet thereof or knows that death is a likely consequence, his intention in the first (illegible) and his knowledge in the third would render to be homicile culpable. Guilty intention or knowledge is essential and if this does not exist, the killing of a man may not amount to culpable homicide. ( 6 ) INTENTION or knowledge necessary to render the killing culpable, homicide is to be established by the prosecution which can be done by proof of circumstances which prove the act or omission. The presumption is that a man knows the probable result of his conduct. When a man is charged with doing an act of which the probable consequence may be highly injurious, the intention is an inference of law resulting from the doing of the act. Intention is proved by or inferred from the acts of the accused and the circumstances of the case. When a man is charged with doing an act of which the probable consequence may be highly injurious, the intention is an inference of law resulting from the doing of the act. Intention is proved by or inferred from the acts of the accused and the circumstances of the case. ( 7 ) THE existence of intention is not to be inferred unless it follows as a natural and probable consequence from the act. Where death is caused by an extraordinary intervening circumstance, no presumption of intention or knowledge can reasonably be drawn. Where death is caused, the degree of guilt of the offender depends on the intention or knowledge with which he did the act and the offences: of which he may be convicted are murder, culpable homicide not amounting to murder, grievous hurt or hurt with variations on account of the weapon or the means used, the seat of assault, the provocation and so forth. ( 8 ) IN order to form an intention, there must be a capacity for rea Tion alid when by some extraneous force this, capacity has, been ousted the capacity to form an intention must have been unseated, too. Knowledge, however, stands upon a different footing. Some degree of knowledge must be attributed to every same person, although the degree of knowledge which any particular person can be assumed to possess may vary. The word knowledge with in the expression with the knowledge that he is likely by such act to cause death occurring in section 299 of the Code defining culpable homicidet is a strong word and imports a certainty and not merely a probability. If a man commits an act and the consequences beyond his purpose result, it is for the court to determine how far he can be held to have the knowledge that he was likely by such act to cause the actual result. ( 9 ) IN the absence of intention or knowledge, the offence committed may be the offence of causing grievous hurt or simple hurt, as the case may be. When injuries have been followed by death and the question is what offence has been committed, it is not to be concluded by any backward reasoning as to the presumable intention or knowledge from the mere fact that the injury caused did, in fact, result in death. When injuries have been followed by death and the question is what offence has been committed, it is not to be concluded by any backward reasoning as to the presumable intention or knowledge from the mere fact that the injury caused did, in fact, result in death. What has to be seen is what degree of injury the accused actually intended or what he knew as to the probable consequence of such injury. ( 10 ) WHAT the offender thought was likely to happen is a question of inference from the nature of the act committed by the offender, his conduct and the surrounding circumstances. When the act that he did in the process of causing hurt is such as any person of ordinary prudence knows it likely to cause grievous hurt, he was be taken to have intended to cause grievous hurt or to have contemplated that grievous hurt was likely to occur. If the act is such that nothing more than simple hurt can reasonably be thought likely to ensue from it, although grievous hurt may unexpectedly have ensued, the offender can be convicted of simple hurt only. ( 11 ) THE appellant had dealt but one blow by M. O. I. on the chest of the deceased. Had he the intention to cause death, be would as well deal blows by M. O. I. on the head. Not even a second blow was dealt on the chest. By dealing only one Tiow on the chest of the deceased, it could not reasonably be said that the appellant had the intention of causing the death of the deceased or that he intended to cause a dangerous injury. One blow had been dealt on the spur of the moment and after a sudden quarrel not by a cutting or stabbing instrument on the chest, but by a blunt weapon which caused fracture of one rib. While the appellant would certainly expect the natural consequence of- his act to be the fracture of a rib and could, therefore, be said to have voluntarily caused grievous hurt, death had been caused by an extraordinary intervening circumstances because a fractured rib caused rupture of the spleen and death occurred owing to rupture of the spleen. While the appellant would certainly expect the natural consequence of- his act to be the fracture of a rib and could, therefore, be said to have voluntarily caused grievous hurt, death had been caused by an extraordinary intervening circumstances because a fractured rib caused rupture of the spleen and death occurred owing to rupture of the spleen. ( 12 ) THE appellant could be attributed with the knowledge of causing the fracture of a rib by his act, but it would be stretching too far to attribute knowledge to him by holding that a appellant should have known that a fractured rib might also cause rupture of the spleen which could cause the death of the victim. Knowledge, as earlier indicated, imports a certainty and not merely a probability and this can be judged from the nature of the act and the circumstances pertaining to the case. Death caused without intention or knowledge, as in the instant case, cannot amount to culpable homicide. Merely because death has been caused, intention or knowledge on the part of the appellant is not to be assumed. The degre6 of knowledge of the appellant could be extended to the causing of fracture of a rib by dealing a blow on the chest by a blunt weapon. The degree of guilt of the appellant is not to be extended beyond what he had intended or knew to be the probable consequence of his act. In the absence of his mental element of intention or knowledge, it, can reasonably and legally be held that by dealing a blow on the chest of the deceased, the appellant had intended to cause and had voluntarily caused grievous hurt as there was fracture of a rib and this would amount to causing grievous hurt within the purview of section 320 of the Code. Unfortunately and by an extraordinary circumstance, the fractured rib pierced into the spleen and ruptured it resulting in the death of the deceased. ( 13 ) THE appellant is, therefore, liable to be convicted for voluntarily causing grievous hurt punishable under section 325 of the Code. ( 14 ) COMING to the question of sentence, it may be seen that the appellant, a young boy, had, on the spur of the moment and being enraged after a sudden quarrel, caused grievous hurt by dealing but one blow on the chest of the deceased. ( 14 ) COMING to the question of sentence, it may be seen that the appellant, a young boy, had, on the spur of the moment and being enraged after a sudden quarrel, caused grievous hurt by dealing but one blow on the chest of the deceased. As hall been submitted at the Bar, the appellant had been in detention for over four months in connection with this case. In my view, this period of detention which, as provided in section 428 of the Code of Criminal Procedure, is to be set off against the period of imprisonment, would meet the ends of justice. ( 15 ) IN the result, the appeal is allowed in part. The order of conviction and sentence passed. against the appellant under section 304, Part I of the Code is set aside and in lieu thereof, he is convicted under section 325 of the Code and sentenced to suffer imprisonment for the period already undergone by him. .