KALIA ALIAS DURYODHAN NAIK v. STATE OF ORISSA — 1998 DIGILAW 125 (ORI)

S. N. PHUKAN, C. J. ( 1 ) THIS appeal is directed against the judgment and order dated 21-6-1993 passed by the Sessions Judge. Koraput, Jeypore, in Sessions Case No. 180 of 1992 convicting the accused-appellant under Section 302. IPC and sentencing him to undergo imprisonment for life. ( 2 ) THE appellant along with two others, namely, Subarna Naik and Janaki alias Budhia Naik were sent up for trial for committing offence under Section 302/34. IPC. The learned Sessions Judge, by the impugned judgment convicted the appellant under Section 302. IPC and acquitted the other two accused persons. ( 3 ) BRIEFLY stated the case of the prosecution is that the appellant and the deceased were carrying on timbet: business jointly. On 19-3-1992, the deceased came to the house of the appellant and demanded money which he had paid in connection with supply of timber. It may be stated that the deceased had paid money for supply of timber and the supplier had delivered the goods in the house of the appellant. There was some altercation between the appellant, and the deceased. The appellant got annoyed and dealt blows on the abdomen of the deceased by means of a knife. It is alleged that the other accused persons who are the sisters of the appellant caught hold of the hands of the deceased at the time when blows were inflicted on him. It is not disputed by the prosecution that it was the appellant who carried the deceased to the hospital where the deceased succumbed to the injuries. ( 4 ) THE plea of the accused was total denial. Both the sisters of the appellants took the further plea of alibi. ( 5 ) IN order to bring home the charge the prosecution examined as may as 18 witnesses P. Ws. 10. 11 and 12 are the alleged eye-witnesses to the occurrence. P. Ws. 3, 4, 5, 6, 7, 8 and 13 are post-occurrence witnesses, P. Ws. 1 and 2 are the doctor and pharmacist respectively of the hospital where first aid was given to the deceased. P. W. 9 is the doctor who conducted autopsy P. Ws. 14. 15. 16 and 17 are witnesses to seizure. P. W. 18 is the investigating officer. No witness was examined on behalf of the accused persons. ( 6 ) THE first question is whether the deceased met with a homicidal death. P. W. 9 is the doctor who conducted autopsy P. Ws. 14. 15. 16 and 17 are witnesses to seizure. P. W. 18 is the investigating officer. No witness was examined on behalf of the accused persons. ( 6 ) THE first question is whether the deceased met with a homicidal death. P. W. 9 is the doctor who conducted autopsy. He found as many as five external injuries on the dead body. On dissection he found that the peritoneum was full of blood clots there was incised injury of the stomach at the upper part of the lesser carviture 1 x 1/2, intestines were full of blood clots liver was pale and there was injury to left of liver at epigastric region spleen was pale and raptured at the hilum measuring 1 x 1/2 there was rupture of splenic vessel and there was injury of abdominal muscles at epigastric and left hypochodrial region. He had clearly stated that all the injuries were ante morten in nature and were sufficient to cause death in the ordinary course of nature. He had opined that death was caused due to haemorrhage and shock resulting from the injuries to the internal organs like spleen, liver, etc. Therefore, we have no doubt in our mindt that the deceased died a homicide death. ( 7 ) THE only question to be decided is whether the appellant was the perpetrator of the crime. P. Ws. . 10. 11 and 12 are the eye-witnesses to the occurrence. According to P. W. 10, the occurrence took place on the day of holi, That day after playing colours he was sitting on the verandah of the appellant on his way to take bath in the well nearby. He has categorically stated that the appellant and the deceased were dealing in timber. The appellant was taking food when the deceased came there and asked for money. Appellant asked the deceased to wait as he was taking food. At that time, the female accused persons were on the verandah a little apart from this witness. They caught hold of the deceased. The appellant came armed with the knife (M. O. 1) and dealt blows on the stomach and right hand of the deceased by means of that knife. We are not concerned with the part played by the female accused persons as they have already been acquitted by the trial Court. They caught hold of the deceased. The appellant came armed with the knife (M. O. 1) and dealt blows on the stomach and right hand of the deceased by means of that knife. We are not concerned with the part played by the female accused persons as they have already been acquitted by the trial Court. Though there is some discrepancy in the evidence of P. W. 10 and other eye-witnesses, we have no hesitation to hold that the deceased went to the house of the accused to ask for money from him and the appellant abused him. From the evidence of P. W. 11, who is the brother of the deceased we find that when he reached the house of the appellant, the appellant was taking food and the deceased was sitting on the door way and asking for money. He had also tried to implicate the female accused persons, who have been acquitted by the trial Court. He has further stated that the appellant dealt three successive blows by means of M. O. I.- two on the left side belly and one on the left fore arm of the deceased. In cross-examination, it has been brought out from him that the appellant and the deceased were carrying on timber business jointly. They were purchasing timber from one Manu Bissoi a timber merchant. Two to three days prior to the date of occurrence the deceased had paid Rs. 1000/ - to Manu Bissoi for supply of timber. He has further stated in crossexamination that there was exchange of hot words between the appellant and the deceased. After seeing one blow given by the appellant, this witness went away to tell his father. P. W. 12 is another eye witness to the occurrence. He has stated that the room in which the appellant Kalia was taking his meal near the door is in between the verandah and another room. The place was visible to this witness. He has also implicated the female accused persons with whom we are not concerned as they have already been acquitted. According to P. W. 12, the deceased demanded money from the appellant and the appellant asked him to wait. Thereafter, he heard the shout of Kalia and also saw him giving blows on the belly and other parts of the body of the deceased. According to P. W. 12, the deceased demanded money from the appellant and the appellant asked him to wait. Thereafter, he heard the shout of Kalia and also saw him giving blows on the belly and other parts of the body of the deceased. In cross-examination, he has stated that the appellant and the deceased were talking loudly and the deceased was asking for money towards the sale of timber. He saw only one blow given by the appellant on the belly of the deceased. P. W. 13 is the father of the deceased. He has clearly stated that the appellant and the deceased were carrying on timber business jointly. From the evidence of P. W. 1, the doctor who gave first aid treatment to the deceased, we find that the appellant made a statement before him that he brought the deceased to the hospital. On being asked, the appellant replied that due to quarrel between them, he has stabbed the deceased. B. W. 2 who is the pharmacist. Has supported the statement of P. W. 1. According to him the appellant told that there was a quarrel between him and the deceased. The deceased had come to assault him, but he assaulted the deceased. According to this witness, the appellant came inside the casualty ward with the deceased. From the evidence of P. W. 9 we find that the appellant and the deceased were in friendly terms and they were carrying on joint business of timber. ( 8 ) FROM the evidence on record, the following facts emerge: (1) The appellant and the deceased were in friendly terms and they were doing timber business jointly. (2) On the date of occurrence, the deceased had gone to the house of the appellant to ask for money in respect of the sale of timber. (3) There was a sudden quarrel between the appellant and the deceased in course of which the appellant gave some stab blows to the deceased. (4) The appellant took the deceased to the hospital. The theory that the lady accused persons caught hold of the hands of the deceased is ruled out as they have already been acquitted by the trial Court. In view of the above findings: it is absolutely clear that the appellant is the perpetrator of the crime. The only question which needs consideration is whether the conviction under Section 302. IPC is maintainable. In view of the above findings: it is absolutely clear that the appellant is the perpetrator of the crime. The only question which needs consideration is whether the conviction under Section 302. IPC is maintainable. ( 9 ) EXCEPTION 4 of Section 300, IPC reads as under:exception 4 - Culpable homicide 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. Therefore, four requirements are necessary to bring a case under the above Exception 4, namely (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. ( 10 ) IN Madani v. State of Rajasthan the apex Court converted the sentence from Section 302, IPC to Section 304, Part-I, IPC as the Court found that the accused had lost self-control and being armed with a sharp edged weapon attacked the deceased. There was also grave and sudden provocation caused to the accused by the prosecution party. ( 11 ) IN Devku Bhikh v. State of Gujarat, the apex Court considered Sections 300 and 304, Part-I, IPC. That was a case where there was grave and sudden provocation to the accused. The deceased was a member of high caste and the accused was of low caste. The accused was subjected to repeated insults by the deceased. The accused requested the deceased, the Headmaster of a school for job which was available in the school. The deceased asked the accused to make available his wife to him for immoral purpose. The accused admitted that he had committed the murder due to grave and sudden provocation. The apex court converted the conviction under Section 302, IPC to Section 304. Part-I. IPC. For the foregoing discussions, we find that the four ingredients of Exception 4 of Section 300. IPC are present in the case in hand. In view of the settled position of law, we allow the appeal in part and convert the conviction of the appellant from Section 302, IPC to Section 304, IPC. Part-I. IPC. For the foregoing discussions, we find that the four ingredients of Exception 4 of Section 300. IPC are present in the case in hand. In view of the settled position of law, we allow the appeal in part and convert the conviction of the appellant from Section 302, IPC to Section 304, IPC. Now, the question is whether it will be under Part-I or Part-Il of that section. From a close look of Section 304, both Part-I and Part-Il, we find that in Part-I, there is inteliltion while in Part-Il, there is only knowledge and intention is expressly excluded. Part-Il applies when the act is done with the knowledge that it is likely to cause death, but without any intention to cause such death. In the case in hand, from the totality of the evidence we find that the accused had no intention to cause the death of the deceased. He had the knowledge that the act done by him might cause the death of the deceased. Therefore, in our opinion, it is a fit case for conviction under Part-II of Section 304, IPC. We convict the appellant accordingly and sentence him to undergo rigorous imprisonment for eight years. Appeal allowed partly.