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2016 DIGILAW 201 (ORI)

Gora Purty v. State of Orissa

2016-03-11

S.K.SAHOO

body2016
JUDGMENT : S. K. SAHOO, J. It is a case of uxoricide. The appellant Gora Purty faced trial in the Court of learned Adhoc Additional Sessions Judge, Fast Track Court, Keonjhar in S.T. Case No.27/20 of 2012 for offences punishable under sections 302 and 201 of the Indian Penal Code for committing murder of his wife Menjari Munda (hereafter ‘the deceased’) on 29.08.2011 at about 6.00 p.m. in village Sitabinj Dankasahi under Ghatagaon police station in the district of Keonjhar and committing disappearance of evidence with the intention of screening himself from legal punishment. The learned Trial Court vide impugned judgment and order dated 03.09.2012 found the appellant guilty under sections 304 Part-I and 201 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.2000/-, in default, to undergo rigorous imprisonment for three months more for the offence under section 304 Part-I of the Indian Penal Code. The appellant was further sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.2000/-, in default, to undergo rigorous imprisonment for three months more for the commission of offence under section 201 of the Indian Penal Code. Both the substantive sentences were directed to run concurrently. 2. The prosecution case as per the First Information Report lodged by Budhuram Munda (P.W.2) on 31.08.2011 before the Inspector in-charge, Ghatagaon Police Station is that the deceased Menjari Munda was his sister and the appellant had married her since last twelve years and they were blessed with three children. The informant received message from his uncle Tura Munda that the appellant after committing murder of the deceased buried her dead body at a little distance from his house. Hearing such news, the informant proceeded to the village of the appellant and asked his niece Nirasa Purty (P.W.4), the daughter of the deceased about the occurrence who told that on 29.8.2011 at about 6.00 p.m. a quarrel ensued between her father (appellant) and mother (deceased) and the appellant dealt blows by means of a crowbar on the head and other parts of the body of the deceased and buried the dead body in a field nearer to their house. The informant found blood stains in the house. The informant found blood stains in the house. The appellant was found absent from the house and it was found that the dead body had been buried at a little distance away from the house and the soil was covered with leaves and branches. The informant suspected that due to domestic quarrel, the appellant committed murder of the deceased. The oral report of P.W.2 Budhuram Munda was reduced into writing by the Inspector in-charge of Ghatagaon Police Station namely Jayakrushna Pagal which was treated as F.I.R. (Ext.2) and accordingly Ghatagaon P.S. case No. 109 dated 31.08.2011 was registered under sections 302 and 201 of the Indian Penal Code. The Inspector in-charge directed P.W.12 Chamaru Sabar to take up investigation of the case. During course of investigation, P.W.12 examined the informant, recorded his statement and made requisition to the Executive Magistrate to remain present at the time of inquest over the cadaver of the deceased. He deputed a constable to guard the place where the dead body was buried. He prepared the spot map Ext.10, seized blood stained earth and sample earth from the spot room under seizure list Ext.3. In presence of the Executive Magistrate, Ghatagaon, the dead body of the deceased was exhumed and P.W.12 held inquest over the dead body and prepared inquest report Ext.1 and then the dead body was sent to C.H.C., Patna for post mortem examination under dead body challan Ext.11. P.W.12 arrested the appellant on 31.08.2011 and seized the wearing apparels of the appellant under seizure list Ext.5 and also seized the weapon of offence i.e., crowbar and a spade having wooden handle under seizure list Ext.4. The wearing apparels of the deceased as well as command certificate were seized under seizure list Ext.12. On 1.9.2011 the appellant was sent to Ghatagaon Hospital for collection of nail clippings and blood sample and after the same were collected and kept in separate vials, those were seized under seizure list Ext.6. The weapon of offence i.e., crowbar was produced before the autopsy surgeon for his opinion who gave his opinion under Ext.9. The seized material objects were sent to S.F.S.L, Rasulgarh, Bhubaneswar for forensic analysis through the Court of learned S.D.J.M., Keonjhar. After completion of investigation, Inspector in-charge of Ghatagoan police station submitted charge sheet against the appellant on 16.12.2011 under sections 302 and 201 of the Indian Penal Code. 3. The seized material objects were sent to S.F.S.L, Rasulgarh, Bhubaneswar for forensic analysis through the Court of learned S.D.J.M., Keonjhar. After completion of investigation, Inspector in-charge of Ghatagoan police station submitted charge sheet against the appellant on 16.12.2011 under sections 302 and 201 of the Indian Penal Code. 3. After submission of charge sheet, the case was committed to the court of session for trial after observing due committal procedure where the learned Trial Court charged the appellant under sections 302 and 201 of the Indian Penal Code on 2.4.2012 and since the appellant refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. 4. In order to prove his case, the prosecution examined twelve witnesses. P.W.1 Fakira Munda is the younger brother of the deceased who stated to have seen the dead body of the deceased lying in the house of the appellant. He further stated that the police was informed about the incident and the dead body was exhumed from the burial ground where the dead body was buried and inquest was held under inquest report Ext.1. P.W.2 Budhuram Munda is the informant in the case and he stated that when he along with his mother and younger brother came to the house of the appellant, they saw the deceased was lying dead in the house of the appellant having injuries on her head and face and further stated that the daughter of the deceased namely Nirasa (P.W.4) narrated the incident before them. He further stated that police exhumed the dead body of the deceased and inquest was held under inquest report Ext.1. P.W.3 Sankar @ Sankarsan Nayak stated about the seizure of blood stained earth and sample earth under seizure list Ext.3. He also stated about the seizure of a crowbar and one spade under seizure list Ext.4. He is also a witness to the inquest over the dead body of the deceased. P.W. 4 Kumari Nirasa Purty is the daughter of the appellant and the deceased and she is an eye witness to the occurrence. P.W.5 Santanu Kumar Bej and P.W.6 Sanjaya Kumar Karjee were the homeguards attached to Ghatagaon police station who stated about the seizure of one check lungi stained with blood, one white-red lungi stained with blood and another T-shirt stained with blood under seizure list Ext.5. P.W.5 Santanu Kumar Bej and P.W.6 Sanjaya Kumar Karjee were the homeguards attached to Ghatagaon police station who stated about the seizure of one check lungi stained with blood, one white-red lungi stained with blood and another T-shirt stained with blood under seizure list Ext.5. He also stated about the seizure of two vials containing nail clippings and blood sample under seizure list Ext.6. P.W.7 Smt. Janaki Munda is the aunt of the appellant who stated about the disclosure made by P.W.4 that the appellant committed murder of the deceased. He further stated that the dead body was exhumed by the police from the bari of the appellant. P.W.8 Dr. Bikram Sahoo was attached to C.H.C, Ghatagaon as Medical Officer who collected blood sample and nail scrapings of the appellant and kept it in two separate vials and handed it over to the escorting constable. He proved his report Ext.7. P.W.9 Madhusudan Munda stated that in the presence of police and also the parents of the deceased, the dead body was exhumed and inquest was held under inquest report Ext.1. P.W.10 Dr. Krushna Chandra Parida was attached to Patna C.H.C. as Medical Officer who conducted post mortem examination over the dead body of the deceased on 31.8.2011 and proved his report Ext.8. He also gave his opinion regarding possibility of injuries by the crowbar which was produced before him by the Investigating Officer and further opined that the injuries sustained by the deceased are sufficient to cause death in ordinary course of nature. P.W.11 Subash Chandra Panda was the Inspector in-charge of Ghatagaon Police Station who took over the charge of investigation from P.W.12 on 16.12.2011 and on the very day he submitted charge sheet under sections 302 and 201 of the Indian Penal Code finding sufficient materials against the appellant. P.W.12 Sri Chamaru Sabar is the Investigating Officer. The prosecution exhibited thirteen documents. P.W.12 Sri Chamaru Sabar is the Investigating Officer. The prosecution exhibited thirteen documents. Ext.1 is the inquest report, Ext.2 is the First information Report, Ext.3 is the seizure list relating to seizure of blood stained earth and sample earth, Ext.4 is the seizure list relating to seizure of weapon of offence i.e. crowbar, Ext.5 is the seizure list relating to seizure of wearing apparels of the appellant, Ext.6 is the seizure list relating to seizure of nail scrapings and blood sample collected from the appellant, Ext.7 is report of doctor about collection of nail scrapings and blood sample, Ext.8 is the post mortem examination report, Ext.9 is the query report, Ext.10 is the spot map, Ext.11 is the dead body challan, Ext.12 is the seizure list relating to seizure of wearing apparels of the deceased and Ext.13 is the forwarding letter of seized material objects for forensic analysis. 5. The defence plea of the appellant was one of denial and it was pleaded that the appellant had not committed the murder of the deceased. 6. The learned Trial Court has been pleased to hold that the evidence of P.W.4 is very much clear and she gave graphic narration about the occurrence and under such circumstances remaining silent by the appellant without giving any plausible explanation is liable to go against him. The learned Trial Court further held that the evidence of P.W.4 is of sterling quality and her evidence is also gaining overwhelming corroboration from the evidence of P.W.1, P.W.2 and medical evidence and the evidence of other witnesses like P.W.7 Smt. Janaki Munda who corroborated the material particular about the evidence. The learned Trial Court further held that when the evidence of P.W.4 is believed, the conviction on the basis of her sole testimony can be recorded as her evidence is reliable, cogent, trustworthy and unimpeachable. The learned Trial Court further held that the prosecution has proved the case beyond all reasonable doubt on adducing overwhelming evidence in favour of prosecution including evidence of eye witness who is none but the daughter of the appellant and evidence of P.W.7 Smt. Janaki Munda who is the neighbouring household of the appellant. The learned Trial Court further held that the prosecution has proved the case beyond all reasonable doubt on adducing overwhelming evidence in favour of prosecution including evidence of eye witness who is none but the daughter of the appellant and evidence of P.W.7 Smt. Janaki Munda who is the neighbouring household of the appellant. The learned Trial Court further held that it is surfaced that the appellant quarreled with the deceased and lost his self control and out of sudden provocation, he committed murder and it is further deduced that the appellant voluntarily got provoked under the influence of liquor and Handia and therefore the act of the appellant was coming within the Exception 4 to section 300 of the Indian Penal Code and accordingly found the appellant guilty of the offences under sections 304 Part-I and 201 of the Indian Penal Code. 7. Adverting over the nature and cause of death of the deceased, I find that apart from the inquest report Ext.1, the prosecution has also relied upon the evidence of P.W.10 Dr. Krushna Chandra Parida who was attached to Patna C.H.C as Medical Officer and he conducted the post mortem examination over the cadaver of the deceased on 31.08.2011 and found the following external injuries:- (i) Lacerted injury on the left eye brow of size 2” X 1” X bone deep; (ii) Abrasion of size 4” X 2” over left shin (Tibial anterior surface) bone with black eye left side; (iii) Fracture of right scapula posterior aspect. On examination of the cranium and spinal canal, the doctor noticed fracture of the frontal bone with hemorrhage into the frontal lobe of brain. On examination of thorax, the doctor found walls, ribs and cartilages were found intact. On dissection of the brain frontal lobe, hematoma of size 1” X 0.5” X 0.5” was seen with bleeding into the frontal lobe of the brain. The doctor opined the cause of death was on account of hemorrhage of the frontal lobe of the brain and hemorrhage into both lungs. He proved the post mortem report Ext.8. The learned Trial Court has held that on due scrutiny of materials available on record, it is unerringly held that the death of the deceased was homicidal. The learned counsel for the appellant has not challenged the findings of the post mortem report. He proved the post mortem report Ext.8. The learned Trial Court has held that on due scrutiny of materials available on record, it is unerringly held that the death of the deceased was homicidal. The learned counsel for the appellant has not challenged the findings of the post mortem report. After perusing the evidence on record, the post mortem examination report Ext.8 and the evidence of P.W.10 Dr. Krushna Chandra Parida, I am of the view that there is no dispute regarding cause of death of the deceased due to hemorrhage of the frontal lobe of the brain and hemorrhage into both lungs and accordingly, I concur with the findings of the learned Trial Court that it is unerringly proved that the death of the deceased was homicidal in nature. 8. Mrs. Susamarani Sahoo, learned counsel for the appellant emphatically contended that the evidence of the child witness (P.W.4) should not have been accepted by the learned Trial Court to convict the appellant as it smacks of tutoring. She fervently urged that since the deceased was also consuming liquor as stated by her brother (P.W.2) and the doctor (P.W.10) conducting post-mortem examination has stated that the injuries noticed on the person of the deceased can be possible by fall over the hard and rough surface, therefore the possibility of the deceased sustaining injuries due to fall under the influence of liquor cannot be altogether ruled out. It is further contended that there are discrepancies in the evidence of the witnesses as to the location of the burial spot of the dead body and though it is the prosecution case that the buried dead body was exhumed in the presence of the Executive Magistrate but since the Executive Magistrate has not been examined, the burial aspect and the exhumation of the cadaver of the deceased should not be believed. She further contended that neither the seized crowbar, spade, wearing apparels of the appellant were produced during trial nor the chemical examination report was proved and therefore it was urged to give benefit of doubt to the appellant. Mr. She further contended that neither the seized crowbar, spade, wearing apparels of the appellant were produced during trial nor the chemical examination report was proved and therefore it was urged to give benefit of doubt to the appellant. Mr. Jyoti Prakash Patra, the learned counsel for the State on the other hand contended that the evidence of the child witness (P.W.4) who is none else than the daughter of the appellant and the deceased is clear, cogent and trustworthy and merely because after the death of her mother, P.W.4 was residing in the house of her maternal uncle and had come to the Court with him for deposing during trial, it cannot be said that she had been tutored by her maternal uncle to depose against the appellant. He further urged that non-production of weapon of offence or wearing apparels of the appellant in Court during trial cannot be a ground to give benefit of doubt to the appellant and since the ocular evidence of the P.W.4 gets ample corroboration from the medical evidence and the doctor has specifically replied to the query made by the I.O. that the injuries sustained by the deceased were possible by crowbar, therefore there is no infirmity or illegality in the impugned judgment and order of conviction. 9. Coming to the charge under section 201 of the Indian Penal Code, it is the prosecution case that the cadaver of the deceased was buried by the appellant with the intention of screening himself from legal punishment and it was exhumed in the presence of the Executive Magistrate. P.W.1 has stated to have seen the dead body of the deceased lying in the house of the appellant. P.W.2 has stated that when he along with his mother and younger brother (P.W.1) proceeded to the house of the appellant in village Sitabinz, they saw the deceased was lying dead in the house of the appellant having injuries on her head and face. However, the evidence of P.W.7 is something different and she has stated that the dead body of the deceased was in the house of the appellant when the brothers of the deceased came but the appellant buried the dead body in his bari when the brothers went to the police station. Such a statement cannot be accepted as after going from the spot, P.W.2 lodged the First Information Report wherein the burial aspect is reflected. Such a statement cannot be accepted as after going from the spot, P.W.2 lodged the First Information Report wherein the burial aspect is reflected. Had such thing taken place after P.W.2 left to the police station from the spot, the burial aspect would not have been mentioned there in the First Information Report. Regarding the place where the cadaver of the deceased was buried, there appears to be contradictory statements. P.W.1 has stated that the dead body was exhumed from the burial ground. P.W.7 has stated that the appellant buried the dead body in his bari which was exhumed by the police. P.W.9 has stated that the dead body was buried in a field adjacent to the house of the appellant. P.W.12 has stated that the dead body was buried in the cultivable field which was about 100 meters away from the house of the appellant. The Executive Magistrate, Ghatagaon in whose presence the dead body was exhumed has not been examined. Similarly so far as the weapons of offence are concerned, P.W.3 has stated that the crowbar and spade were seized from the spot house where the dead body of the deceased was lying. In order to attract the ingredients of the offence under section 201 of the Indian Penal Code, the prosecution is required to prove the following aspects:- (i) The accused had knowledge or reason to believe that an offence has been committed; (ii) The accused caused disappearance of the evidence which is related to such offence; (iii) Such disappearance has been done with the intention of screening himself or any other offender from legal punishment which is co-related to such offence; (iv) After having knowledge or reason to believe regarding commission of offence, the accused intentionally gave any false information relating to such offence and thereby caused disappearance of evidence. Coming to the evidence on record, when the cadaver of the deceased as well as the weapons of the offence were lying in the spot house and there are discrepancies relating to the place from where the cadaver was buried and exhumed, it would be unsafe to convict the appellant under section 201 of the Indian Penal Code and therefore the conviction of the appellant under section 201 of the Indian Penal Code and the sentence imposed there under by the learned Trial Court is hereby set aside. 10. 10. Adverting to the contentions raised for the conviction of the appellant under section 304 Part-I of the Indian Penal Code, the star witness on behalf of the prosecution is P.W.4 Kumari Nirasa Pruty, the eleven years daughter of the appellant and the deceased. When P.W.4 appeared in the witness box, the learned Trial Court put some questions to her and from the answers given which were reflected in the first paragraph of her deposition, the learned Trial Court held her to be competent to testify in the Court as she was able to give rational answers to the questions put to her. The challenge before this Court is not regarding her competency to testify but on the ground that she was tutored to give evidence. P.W.4 has stated that on the date of occurrence in the evening hours, her father (appellant) and mother (deceased) quarreled and her father got enraged and dealt blows by means of a crowbar which landed on the leg, head and chest of her mother and she died. She further stated that she was present in the same house where her mother was murdered by her father. The doctor (P.W.10) conducting post mortem examination noticed bleeding lacerated injury on the left eye brow, abrasion over left shin (Tibial anterior surface) and fracture of right scapula on posterior aspects. There was fracture of frontal bones with hemorrhage into the frontal lobe of the brain. The doctor has specifically opined vide Ext.9 that injuries were possible by the crowbar which was produced before him by the I.O. for opinion and he has further stated that the injuries are sufficient in ordinary course of nature to cause death. Thus the ocular testimony of P.W.4 is corroborated by the medical evidence. The conduct of P.W.4 in disclosing about the occurrence before P.W.2 and P.W.7 implicating the appellant as the assailant of the deceased almost immediately after the occurrence is admissible under section 6 of the Evidence Act as res gestae. The contentions raised that P.W.4 is a tutored witness is based on assumptions and presumptions and there is no sufficient force in it. P.W.4 has stated that nobody had tutored her to speak against her father. The contentions raised that P.W.4 is a tutored witness is based on assumptions and presumptions and there is no sufficient force in it. P.W.4 has stated that nobody had tutored her to speak against her father. P.W.4 has stated that after the death of her mother, she was residing in the house of her maternal uncles who use to love her and stated her to depose in the Court and accordingly she was deposing in the Court. She has further stated that her maternal uncle was standing inside the Court. She has specifically denied to the suggestion made by the learned defence counsel that she was deposing falsehood on being tutored by her maternal uncles. Learned counsel for the appellant placed reliance in the case of Sukhram Vrs. State of M.P. reported in 1995 Criminal Law Journal 595 wherein it was held that when the prosecution case is solely resting on the evidence of a small child witness of tender age and it is tainted with infirmities of description, on the part of proper identification and when there is evidence to show that child was tutored, it is unsafe to base conviction on such evidence in murder case. Learned counsel for the appellant further placed reliance in the case of State of H.P. Vrs. Kuldeep Singh reported in 2012 Criminal Law Journal 150 wherein it is held that when the evidence of the child witness was unspecific with regard to time and place and she deposed something which was not the case of the prosecution, it was held that her statement was not of much help to the prosecution. The citations placed by the learned counsel for the appellant are not relevant to the facts and circumstances of the present case. The evidence of P.W.4 is crystal clear, cogent, convincing, consistent and reliable. Her evidence not only gets corroboration from the evidence of other witnesses like P.W.2 and P.W.7 before whom she disclosed about the occurrence but also from the medical evidence. In Nivrutti Pandurang Kokate and Ors. Vrs. The evidence of P.W.4 is crystal clear, cogent, convincing, consistent and reliable. Her evidence not only gets corroboration from the evidence of other witnesses like P.W.2 and P.W.7 before whom she disclosed about the occurrence but also from the medical evidence. In Nivrutti Pandurang Kokate and Ors. Vrs. State of Maharashtra reported in (2008) 39 Orissa Criminal Reports (SC) 928, it has been observed that the section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease-whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. The decision on the question whether the child witness has sufficient intelligence primarily rests with the Trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the Trial Court may, however, be disturbed by the higher Court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence, the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness. In the case of Dattu Ramrao Sakhare and Ors. Vrs. State of Maharashtra reported in (1997) 5 Supreme Court Cases 340, it is held as follows:- “A child witness if found competent to depose to the facts and reliable one, such evidence could be the basis of conviction. In the case of Dattu Ramrao Sakhare and Ors. Vrs. State of Maharashtra reported in (1997) 5 Supreme Court Cases 340, it is held as follows:- “A child witness if found competent to depose to the facts and reliable one, such evidence could be the basis of conviction. In other words, even in the absence of oath, the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the Court should bear in mind while assessing the evidence of a child witness is that the witness must be reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated before a conviction can be allowed to stand but, however as a rule of prudence the Court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record.” In the case of State of M.P. Vs. Ramesh reported in (2011) 49 Orissa Criminal Reports (SC) 95, it is held that deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the Court and there is no embellishment or improvement therein, the Court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition. In the case of K. Venkateshwarlu Vrs. The State of Andhra Pradesh reported in (2012) 53 Orissa Criminal Reports (SC) 443, it is held that the evidence of a child witness has to be subjected to closest scrutiny and can be accepted only if the Court comes to the conclusion that the child understands the question put to him and he is capable of giving rational answers (see Section 118 of the Evidence Act). A child witness, by reason of his tender age, is a pliable witness. He can be tutored easily either by threat, coercion or inducement. Therefore, the Court must be satisfied that the attendant circumstances do not show that the child was acting under the influence of someone or was under a threat or coercion. Evidence of a child witness can be relied upon if the Court, with its expertise and ability to evaluate the evidence, comes to the conclusion that the child is not tutored and his evidence has a ring of truth. It is safe and prudent to look for corroboration for the evidence of a child witness from the other evidence on record, because while giving evidence a child may give scope to his imagination and exaggerate his version or may develop cold feet and not tell the truth or may repeat what he has been asked to say not knowing the consequences of his deposition in the Court. Careful evaluation of the evidence of a child witness in the background and context of other evidence on record is a must before the Court decides to rely upon it. Keeping in view the law laid down by the Hon’ble Supreme Court and after carefully scanning the evidence of P.W.4 with great circumspection, I am not able to accept the contentions raised on behalf of the appellant that P.W.4 is a tutored witness rather she is a truthful witness and therefore I find no hesitation to accept her evidence. P.W.4 has stated that the appellant was not working and was not purchasing rice for their meals but the deceased was purchasing rice for their meals and other things and she was maintaining them. P.W.4 has further stated that her father was under inebriated condition on consuming Handia (fermented rice) and liquor. P.W.2 has stated that the appellant was in the habit of consuming liquor and the deceased was also occasionally consuming liquor. Not only from the evidence of P.W.4 but also from the evidence of P.W.7, it appears that there was quarrel between the appellant and the deceased at the time of occurrence. The learned Trial Court has held that the appellant quarrelled with the deceased and lost his self control and out of sudden provocation, the appellant committed murder. Not only from the evidence of P.W.4 but also from the evidence of P.W.7, it appears that there was quarrel between the appellant and the deceased at the time of occurrence. The learned Trial Court has held that the appellant quarrelled with the deceased and lost his self control and out of sudden provocation, the appellant committed murder. The appellant voluntarily got provoked under the influence of liquor drink and Handia drink and the act of the appellant is coming within the Exception 4 to section 300 of the Indian Penal Code. The basic difference between sections 85 and 86 of the Indian Penal Code is that as per section 85 of the Indian Penal Code, if the intoxication is involuntary and the accused was intoxicated without his knowledge or against his will then neither knowledge nor intention in committing the offence will be imputed to him provided that at the time of doing it, by reason of intoxication, he was incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law. As per section 86 of the Indian Penal Code, if the intoxication is voluntary, then only knowledge of the offence on the part of the offender will be presumed but not the intention in committing it. A person by reason of intoxication under certain circumstances may be incapable of knowing the nature of a particular act he commits or that it is either wrong or contrary to law but drunkenness cannot be a defence or an excuse to commit an offence. So far knowledge is concerned, the Court must attribute to the intoxicated man the same knowledge as if he was quite sober. However, so far as the intention is concerned, the Court must gather it from the attending circumstances giving due regard to the degree of intoxication. The intoxication must be such as to prevent the accused restraining him from committing the offence or to take away from him the power of forming any specific intention. The mind must be so obscured by drink that the accused was incapable of forming any intent to commit the crime. The evidence of drunkenness falling short of proved incapacity to form the intent necessary to constitute the crime does not rebut the presumption that a man intends the natural consequences of his act. The mind must be so obscured by drink that the accused was incapable of forming any intent to commit the crime. The evidence of drunkenness falling short of proved incapacity to form the intent necessary to constitute the crime does not rebut the presumption that a man intends the natural consequences of his act. The basic distinction between section 304 Part-I and 304 Part-II of the Indian Penal Code is that after coming to a finding that the offence committed is culpable homicide not amounting to murder as it falls under any of the five exceptions enumerated under section 300 of the Indian Penal Code, the Court has to scrutinise the “intention” or “knowledge” aspect. If there is intention to cause death or intention of causing such bodily injury as is likely to cause death, the offence would fall within the purview of section 304 Part-I of the Indian Penal Code. If there is no such intention but only knowledge that it is likely to cause death, then it would come within the purview of section 304 Part-II of the Indian Penal Code. The intention is a state of mind which has to be inferred from the facts and circumstances of each case. The nature of the weapon used, how it was used, what type of injuries were inflicted, the part of body where injuries were caused, the pre-crime and post-crime conduct of the accused are some of the relevant factors which are to be taken note of by the Court. The accused can be said to have ‘intention’ when not only he had the knowledge of likely result of his act but also he acted to achieve the desired result. The accused can be said to have ‘intention’ when not only he had the knowledge of likely result of his act but also he acted to achieve the desired result. Even though the occurrence in question occurred during sudden quarrel and the appellant was in a drunken condition but taking into account the weapon of offence i.e. crowbar and repeated blows dealt by the appellant in causing injuries on the deceased on the left eye brow which led to fracture of frontal bone with haemorrhage into the frontal lobe of the brain, left shin (Tibial anterior surface) and fracture of right scapula and the opinion of the doctor that injuries were sufficient in ordinary course of nature to cause death, I am of the view that even though the act of the appellant is covered under Exception 4 to section 300 of the Indian Penal Code but since he has intentionally caused the bodily injuries as were likely to cause death, he is liable under section 304 Part-I of the Indian Penal Code. 11. In the result, Jail Criminal Appeal is allowed in part. The impugned judgment and order of conviction of the appellant under section 201 of the Indian Penal Code and sentence imposed there under is set aside and the appellant is acquitted of the said charge. However, the impugned judgment and order of conviction of the appellant under section 304 Part-I of the Indian Penal Code and sentence of rigorous imprisonment for ten years and to pay a fine of Rs.2000/-(rupees two thousand), in default, to undergo rigorous imprisonment for three months as was imposed by the learned Trial Court for such offence suffers from no infirmity and therefore stands confirmed. Accordingly, the Jail Criminal Appeal is allowed in part.