Research › Search › Judgment

Orissa High Court · body

2014 DIGILAW 438 (ORI)

Charan Nayak v. State of Orissa

2014-07-24

RAGHUBIR DASH, VINOD PRASAD

body2014
Judgment Raghubir Dash, J. This Jail Criminal Appeal is against the judgment dated 07.04.2004 passed by the learned Ad hoc Additional Sessions Judge (F.T.), Keonjhar in S.T. Case No.105/27 of 2002/03 convicting the appellant for the offence punishable under Section 302, I.P.C. and sentencing him to undergo life imprisonment. 2. The F.I.R. story is that on 7.12.2001 at about 6.00 A.M. while the informant with his wife Samari Behera were sitting near a fire lit in their front courtyard the deceased came their to join with them to enjoy the warmth of the fire in the wintery morning. The accused-appellant all of a sudden came there and gave two blows to the deceased with a stick. As a result, deceased died on the spot. 3. Same day F.I.R. was lodged at about 10.50 A.M. The police took up investigation. In course of investigation the police conducted inquest over the dead body, sent the dead body for post mortem, examined witnesses, made seizure of some articles from the spot including the weapon of offence, arrested the appellant, sent him for medical examination as he was found to have sustained some injuries and on completion of investigation submitted charge-sheet on 09.04.2002 before the learned S.D.J.M., Keonjhar who committed the appellant to the court of Sessions on 07.05.2002. After commitment, the case was registered in the court of Sessions and thereafter it was transferred to the court of the Ad hoc Additional Sessions Judge (F.T.), Keonjhar for trial. The learned Sessions Judge, on the inability of the appellant to engage a lawyer, appointed a State Defence Counsel to defend the appellant. Charge-sheet was framed under Section 302 of I.P.C. The appellant denied the charge and claimed to be tried. Prosecution examined 14 witnesses. Appellant’s statement was recorded under Section 313 of the Cr.P.C. He did not adduce any evidence in his defence. 4. Learned trial court, after examining the oral and documentary evidence, recorded findings of guilt and convicted the accused for the offence of murder and inflicted the punishment of life imprisonment. 5. Since the date of his arrest, i.e., 07.12.2001 the appellant has been in custody. After his conviction he sent a prisoner’s petition through the Superintendent of District Jail, Keonjhar on receipt of which the present Appeal has been registered. 6. According to the prosecution, P.Ws. 5. Since the date of his arrest, i.e., 07.12.2001 the appellant has been in custody. After his conviction he sent a prisoner’s petition through the Superintendent of District Jail, Keonjhar on receipt of which the present Appeal has been registered. 6. According to the prosecution, P.Ws. 2, 3 and 6 are eye-witnesses to the alleged assault but during cross-examination it is found that P.W.2 is not an eye-witness. P.Ws.3 and 6 have stated that while they were sitting by the side of a fire in their front-courtyard, the deceased came there and joined with them and thereafter the appellant also came there holding a lathi and assaulted the deceased on his head as a result of which the deceased died on the spot. P.W. 5, the doctor, who conducted post mortem examination, found the following injuries: (i) Haematoma over left temporal region : size 4? x 3? (ii) Haematoma over occipital region : size 3? x 3?. (iii) Laceration over occipital region : size 1? x ½?. The doctor also found the skull bone (occipital and temporal) showing multiple fracture. He also noticed that the brain was lacerated and flooded with fresh blood. The doctor opined that the death was caused due to the head injury leading to multiple fracture of skull bone and laceration of brain. He also opined that the injuries are ante-mortem in nature sufficient to cause instant death in ordinary course of nature. 7. Finding the eye-witness account of P.Ws. 3 and 6 to have withstood the test of cross-examination and corroborated by the medical evidence, the learned trial court concluded that the appellant committed the offence of murder. 8. Mr. H.M. Malik, Advocate, engaged as Legal Aid Counsel to defend the appellant, fairly submits that the evidence on record stand undemolished yet, it is argued, it must be appreciated that if the learned trial court had made a critical analysis of the evidence, the appellant would have been convicted under Section 304 I.P.C. and not under Section 302 I.P.C. Inviting our attention to the factum of absence of motive it is argued that in order to ascertain the ‘intention’ or ‘knowledge’ which cannot be proved by direct evidence absence of motive plays a vital role. 9. 9. Learned counsel for the State, on the other hand, supports the conviction recorded by the learned trial court and submits that impugned order of conviction and sentence is not liable for interference. 10. The sole question to be answered in this appeal is whether the culpable homicide now under consideration amounts to murder punishable under Section 302 I.P.C. or it comes within the purview of Section 304 I.P.C. 11. There is absence of allegations that the accused and the deceased had any ill-feeling towards each other. Both of them hail from different villages. They are not related to each other. The occurrence took place in the morning at about 6 A.M. The informant (P.W.6), his wife (P.W.4) and the appellant all are residents of village Nuapada. The incident took place at the front courtyard of informant’s house. It was a wintry morning. The informant and his wife had lit fire at their front-courtyard to sit by its side to ward off cold. They were busy in weaving a bamboo basket. The deceased, who is a resident of a nearby village named Machhabhandar, came there and joined them to sit near the fire. Then the appellant came armed with a wooden stick and all on a sudden dealt three blows with the stick on the deceased’s head. The deceased died on the spot. The prosecution story is totally challenged as to what was the motive behind sudden attack on the deceased. Although eyewitnesses seem to be impartial, but the learned State Defence Counsel had made no effort to cross-examine them on the question of motive and had left their deposition unchallenged. Prosecution on its part had also not fathomed out the reason for a sudden attack by the appellant. Neither the prosecution nor the defence therefore, got it elicited as to what was the cause of the incident. As stated above, the participation of the appellant in the crime, though seems to have been established, but regarding the offence committed by him, motive for assault was a relevant consideration. In absence of any evidence tendered by the prosecution in the trial regarding that, it is very difficult to accede to the prosecution case that appellant had the requisite intention to commit murder of the deceased. In absence of any evidence tendered by the prosecution in the trial regarding that, it is very difficult to accede to the prosecution case that appellant had the requisite intention to commit murder of the deceased. In absence of any evidence to indicate the motive which prompted the appellant to commit murder, it will not be appropriate for us to presuppose it against the appellant-accused to hold him guilty for a charge of murder. 12. ‘Intention’ or ‘knowledge’ being a man’s state of mind cannot be proved by direct evidence thereof, except through his own confession. In the absence of such a confession they can be proved only by circumstantial evidence. In other words, these are matters of inference from all the circumstances available in a case. Such circumstances may well be motive, the preparation made, the declaration, if any, made by the offender at the time of commission of the offence, the weapon used, the nature of the injuries actually inflicted: (1988 (3) Crimes 430 : Dr. A.G. Bhagwat Vs. U.T. Chandigarh). In the case at hand, the record is completely silent as to why the appellant did the act. It is true that in a case where the available ocular testimony is reliable, absence of motive loses significance. That is so when the question is on the reliability of the prosecution case. But, here in this case we are not called upon to determine whether the prosecution case is susceptible to any reasonable doubts. What we are required to ascertain is the requisite intention or knowledge to bring the criminal act under either Section 302 or Section 304 of I.P.C. For that purpose absence of motive is one of the significant factors that will not lose significance even if the direct evidence is above any suspicion. Therefore, the absence of motive is a circumstance which favours the appellant to some extent. 13. Another significant aspect which we consider favorable to the appellant is regarding his preparedness to commit the crime. The prosecution evidence is that the appellant had arrived at the incident scene holding a wooden stick. If he had an intention to annihilate the deceased, in the normal circumstance he could have approached the deceased armed with a much lethal weapon. Another significant aspect which we consider favorable to the appellant is regarding his preparedness to commit the crime. The prosecution evidence is that the appellant had arrived at the incident scene holding a wooden stick. If he had an intention to annihilate the deceased, in the normal circumstance he could have approached the deceased armed with a much lethal weapon. Without uttering a single word, the appellant straight way assaulted the deceased by giving three blows to him, but what is of utmost significance is that out of these three blows, two did not had sufficient force even to cause a lacerated wound. Injury nos.1 and 2 to the deceased are only Haematoma and therefore, as a matter of fact, it can reasonably be inferred that while giving those blows, appellant had taken enough care and due precaution not to hit the deceased with such excessive force so as to cause lacerated wounds and cause his death. On the contrary what emerges is that while inflicting those blows intention to commit murder or to cause such bodily injury which in all likelihood would have resulted in victim’s death eluded appellant’s minds and at that moment he only intended to cause hurt with knowledge sans intention that he might cause death of the deceased. The precaution taken by the appellant while inflicting those two injuries thus is a significant circumstance to elude the intention to commit murder on the part of the appellant. The weapon of assault wielded by the appellant, which is a wooden stick, is another pointer of the absence of an intention to commit murder or to cause such bodily injury as would have resulted in the death of the appellant. Absence of any declaration made by the appellant while committing the offence is another factor which does not help the prosecution to make out a case under Section 302 of I.P.C. Under such circumstances, it appears to be very much difficult to infer that the appellant had the intention to inflict such injury as was likely to cause death. Appellant was in his prime youth and it seems that the incident had occurred in heat of passion because of some thing which defy our imagination and is not known to us and for which prosecution has also not tendered any evidence. Appellant was in his prime youth and it seems that the incident had occurred in heat of passion because of some thing which defy our imagination and is not known to us and for which prosecution has also not tendered any evidence. It has not been brought on the record that the appellant was suffering from some mental ailment and under that influence he had acted in such a bizarre manner. We are, therefore, robbed off the clear intention and motive on the part of the appellant to commit murder although without ambiguity it can be safely inferred that he had assaulted the deceased taking a safer position with knowledge that death may ensue because of his assault. It will thus be appropriate to hold the appellant guilty only of that crime which has been proved by the prosecution beyond all reasonable doubt. Once the intention to commit murder or an intention to give such fatal injury as in all probability would have resulted in death of the deceased is not satisfactory proved, the only course left open is to hold the appellant guilty of an offence of culpable homicide not amounting to murder punishable under section 304, Part-I, IPC. Thus, in our considered opinion, recorded conviction under section 302, IPC and imposed sentence of life imprisonment are unsustainable. The appellant can be held to be guilty only for committing an offence punishable under section 304, Part-I, IPC, for which rigorous imprisonment already served by the appellant which is twelve and half years, seems to be an appropriate sentence. 14. Appeal thus, is allowed in part. Conviction of the appellant under Section 302, IPC, and sentence of life imprisonment therefor, is hereby set aside and instead appellant is convicted under Section 304, Part-I, IPC. 15. The appellant is in jail since 7.12.2001. As such, as on date he has already undergone twelve and half years of sentence and therefore, the period of imprisonment already undergone by him is sufficient to meet the ends of justice and it is hereby ordered as such. 16. The appellant is directed to be set at liberty unless he is wanted in any other crime. Vinod Prasad, J. : I agree.