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2017 DIGILAW 1073 (ORI)

Sundarrai Kurtadi v. State of Orissa

2017-09-16

K.R.MOHAPATRA, S.K.MISHRA

body2017
JUDGMENT : S.K. Mishra, J. 1. This appeal arises out of the judgment rendered by the learned Adhoc Addl. Sessions Judge, Jeypore convicting the appellant, Sundarrai Kurtadi under Section 302 of the Indian Penal Code, 1860, hereinafter referred to as the ‘IPC’ for brevity, and sentencing him to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default to undergo R.I. for six months as per the judgment dated 29.07.2004 in Criminal Trial No.45 of 2002 (S.C. No. 59/86 of 2001/2000). 2. Bereft of unnecessary details the case of the prosecution is that in the night of occurrence, i.e. on 04.11.1999, the deceased after taking his dinner slept on the outer of his house along with his brother. The accused, who is related to the deceased, was present in the house on that day. That night the accused-appellant talked to the daughter of the informant and thereafter he left the place. The brothers of the deceased during midnight shouted that somebody had assaulted the deceased and he had bleeding injuries. Thereafter, they called the villagers and the deceased was shifted to the District Headquarters Hospital, Koraput, where he succumbed to injury on 06.11.1999. 3. On such event, the informant lodged an FIR before the Officer In-Charge, Koraput Police Station, Dist. Koraput. The Investigating Officer took up investigation of the case. He examined the witnesses, visited the spot and sent the dead body for examination. After holding inquiry over the same, the I.O. seized the blood stained earth and the weapon of offences at the spot. He got statement of witnesses recorded under Section 164 Cr.P.C. by a magistrate on requisition and then arrested the accused. The I.O. after completion of investigation submitted charge-sheet under Section 302 of the IPC. 4. The accused stood his trial and took up plea of complete denial in course of trial. 5. In order to prove its case, the prosecution examined ten witnesses. P.Ws. 4 and 5 are the brother and sister-in-law of the deceased, who claim to be the eye-witnesses to the occurrence. P.W.1 is a witness to the inquest. P.Ws. 2 and 3 are co-villagers of the deceased. They have not supported the prosecution case. P.W.7 is a seizure witness. P.Ws. 6, 8 and 9 are Investigating Officers, who have attended different parts of investigation. P.W.10 is the Medical Officer, who has conducted post-mortem examination. 6. The learned Adhoc Addl. P.W.1 is a witness to the inquest. P.Ws. 2 and 3 are co-villagers of the deceased. They have not supported the prosecution case. P.W.7 is a seizure witness. P.Ws. 6, 8 and 9 are Investigating Officers, who have attended different parts of investigation. P.W.10 is the Medical Officer, who has conducted post-mortem examination. 6. The learned Adhoc Addl. Sessions Judge mainly relying upon the evidence of P.Ws.4 and 5, as attended in supported by the findings of the medical officer, his opinion and testimony of other witnesses came to the conclusion that prosecution has proved its case beyond all reasonable doubts and proceeded to convict the appellant under Section 302 of the IPC. After conviction, he sentenced him as aforesaid. 7. Mr. L.N. Raitsingh, learned Legal Aid Counsel, while assailing the judgment did not dispute that the death of the deceased is homicidal in nature. But, his main contention is that an offence under Section 302 IPC is not made. According to him, the offence under Section 304-Part-I IPC is made out. He submitted that the accused-appellant gave only one blow in a spur of moment without any pre-mediation and he never intended to inflict such injury on the deceased that led to death in ordinary course of nature. The learned Addl. Government Advocate, on the other hand, contends that the judgment passed by the learned Adhoc Addl. Sessions Judge does not require any interference. Elaborating arguments, she submitted that the finding that the offence under Section 302 IPC is well found out and with reasons. Hence, there is no reason to disturb the same. 8. In order to appreciate evidence and the contentions raised by the learned counsel for the appellant, it is appropriate to take note of the testimony of the witnesses. P.W.4, namely, Keshaba Pangi, who happens to be young brother of the deceased, stated that, on the date of occurrence, while he was sleeping near the leg of his elder brother on the outer verandah, he saw the accused assaulted his brother on his head by means of a stone. He identified the stone in the court. On the next day of the occurrence, police came to his village and his statement was recorded. He could not say the exact time of the occurrence but said it was during the night time. He identified the stone in the court. On the next day of the occurrence, police came to his village and his statement was recorded. He could not say the exact time of the occurrence but said it was during the night time. He admitted that he being an illiterate person, cannot say the exact time and deny the suggestion that he is not seen the assault. P.W.5, Nayana Pangi stated on oath that the deceased happens to be younger brother of her husband. She had prior acquaintance with the accused. On date of occurrence the accused came to her house and misbehaved with her. She shouted and told that her DEORO is present there. He being furious assaulted the deceased by means of a stone. M.O. I is that stone. She has admitted that she was examined twice by the police. First occasion, the accused had given threats to her and asked that she should say she had not seen who had assaulted the deceased. She also admits that she cannot say the exact time of occurrence. It is also borne out from the record that the statement of these two witnesses was recorded under Section 164 Cr.P.C. and they have also implicated the appellant in the crime. 9. Though P.W. 5 has stated in the first occasion that she has not implicated the appellant, in her statement under Section 174 Cr.P.C. she has stated about the misbehavior and the action of the appellant of assaulting the deceased by means of a stone on his head. This fact is very much supported by the evidence of P.W.10, the doctor who has categorically stated that the injury can be caused by seized weapon i.e. stone, M.O. I. and it is sufficient to cause death in ordinary course of nature. Thus, the fact is that the death is homicidal and the appellant is the author of crime appears to be correct to us. Secondly, the contention is that the offence under Section 302 IPC is not made out. In the case of ABDUL WAHEED KHAN ALIAS WAHEED AND OTHERS VERSUS STATE OF A.P., (2002) 7 SCC 175 , the Hon’ble Supreme Court had the occasion to examine the distinction between culpable homicide amounting to murder and culpable homicide not amounting to murder. Secondly, the contention is that the offence under Section 302 IPC is not made out. In the case of ABDUL WAHEED KHAN ALIAS WAHEED AND OTHERS VERSUS STATE OF A.P., (2002) 7 SCC 175 , the Hon’ble Supreme Court had the occasion to examine the distinction between culpable homicide amounting to murder and culpable homicide not amounting to murder. At paragraph-11 of the aforesaid case, the Hon’ble Supreme Court has held that in the scheme of IPC culpable homicide is the genus and “murder”, its specie. The Hon’ble Supreme Court further held that all murder is culpable homicide but not the vice versa. Speaking generally, culpable homicide sans special characteristics of murder is culpable homicide not amounting to murder. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, “culpable homicide of the first degree”. This is the greatest form of culpable homicide, which is defined in Section 300 IPC as murder. The second may be termed as culpable homicide of the second degree. This is punishable under the first part of Section 304 IPC. There is culpable homicide of the third degree. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishment provided for the three grades. Culpable homicide of this degree is punishable under the second part of the Section 304 IPC. 10. In the aforesaid case, the Hon’ble Supreme Court has examined the distinction between murder and culpable murder. We find it apposite to take note of the exact words used by the Hon’ble Supreme Court, which appears at paragraph 12. It reads as follows: “12. The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences: Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done- Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done- INTENTION (a) with the intention of causing death; or (b) with the intention of causing such bodily injury as is likely to cause death; or (1) with the intention of causing death; or (2) 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 (3) 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 KNOWLEDGE (c) with the knowledge that the act is likely to cause death. (4) with the knowledge that the act 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 is mentioned above. 11. Thus, it i s clear distinction feature between Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under (2) is the knowledge possessed by the offender regarding the particular victim in such condition or state that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person. Intention to cause death is not essential requirement of clause-2. Only the intention of causing the bodily injury coupled with the offender’s knowledge of the likelihood of such injury causing the death of the victim is sufficient to bring the killing within the ambit of this clause. Applying the aforesaid principle to the case at hand, it is seen that there is no previous preparation or pre-mediation of the appellant. Only the intention of causing the bodily injury coupled with the offender’s knowledge of the likelihood of such injury causing the death of the victim is sufficient to bring the killing within the ambit of this clause. Applying the aforesaid principle to the case at hand, it is seen that there is no previous preparation or pre-mediation of the appellant. He had been to the house of the deceased and it appears that he had some kind of dispute with P.W.5 and as she protested, the appellant out of anger assaulted the deceased by means of a stone. So, we are of the opinion that the appellant should have been convicted for the offence under Section 304 Part-I IPC and not the offence under Section 302 IPC. Accordingly, we allow the appeal in part, set aside the conviction of the appellant under Section 302 IPC and proceed to convict him under Section 304-Part-I IPC, thereby modifying the sentence of imprisonment of life under Section 302 IPC to rigorous imprisonment for ten years under Section 304-Part-I IPC. However, keeping in view the fact that the appellant has not been able to engage a lawyer on his own, we propose to impose not fine on the appellant. Hence, the imposition of fine and the consequential default sentence are hereby set aside. The period undergone be set off against the substantive sentence and if the appellant is not otherwise required to be detained in any other case, he be set at liberty forthwith after completion of the term of substantive imprisonment.