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2021 DIGILAW 91 (ORI)

Arjuna Sabar v. State Of Orissa

2021-03-03

S.K.MISHRA, SAVITRI RATHO

body2021
JUDGMENT S. K. Mishra, J. - The sole appellant-Arjuna Sabar assails his conviction for commission of offence punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as "Penal Code," for brevity) and to undergo imprisonment for life, recorded by the learned Sessions Judge, Sambalpur in S.T. Case No.84 of 2008, vide, judgment of conviction and order of sentence dated 10th March, 2009. 2. The prosecution case is that, on 10.03.2008, at about 12.30 P.M., the deceased was present in his house. The appellant came with a stick and beat him to death. Brother of the deceased, the informant in this case, submitted a report before the I.I.C., Charmal Police Station. On the basis of the said report, the Investigating Officer, P.W.6, Rabindra Ku. Mallick took up investigation of the case, examined the informant and other witnesses, recorded their statements, despatched the dead body for postmortem examination after holding inquest over the dead body, seized the material objects and arrested the accused. On the basis discovery statement of the accused, he recovered the weapon of offence i.e. wooden batten (M.O.-I). He obtained the opinion of the doctor, who has conducted postmortem examination on the dead body of the deceased regarding the weapon of offence and the injuries found on the deceased. Material objects were sent through the learned S.D.J.M., Sambalpur for chemical examination to R.F.S.L., Sambalpur. After completion of investigation, he submitted the charge sheet against the appellant under Section 302 of the Penal Code. 3. The appellant took the plea of simple denial and pleaded his innocence. 4. In order to prove its case, the prosecution examined altogether six witnesses altogether. P.W.1, brother of the deceased Ghau Sabar is the informant in this case. But, he is not an eye witness, as he was informed about the incident. P.W.2, Laxmana Sabara, P.W.3, Sambhu Sabar and P.W.4, Bira Sabara are the three eye witnesses to the occurrence. P.W.5, Dr. Shravan Agrawal has conducted postmortem examination on the dead body of the deceased. He has also rendered opinion on examination of the weapon of offence i.e. wooden batten (M.O.-I). Ext.-6 is the postmortem examination report and Ext.-7 is his opinion on the examination of the weapon of offence. P.W.6, Rabindra Ku. Mallick, the I.I.C., of Charmal Police Station is the Investigating Officer in this case. No witnesses have been examined on behalf of the Defence. Ext.-6 is the postmortem examination report and Ext.-7 is his opinion on the examination of the weapon of offence. P.W.6, Rabindra Ku. Mallick, the I.I.C., of Charmal Police Station is the Investigating Officer in this case. No witnesses have been examined on behalf of the Defence. The prosecution has also lead into evidence 12 exhibits and 1 material object. 5. The learned Sessions Judge, Sambalpur taking into consideration the evidence of P.Ws.2, 3 and 4, the eye witnesses, whose testimonies are supported by the evidence of P.W.5, the doctor, who conducted postmortem examination and also examined the wooden batten, together with the recovery of the wooden batten, in pursuance of the disclosure statement made by the appellant under Section 27 of the Indian Evidence Act, came to the conclusion that the prosecution has proved its case beyond reasonable doubt. He proceeded to convict the appellant for commission of offence punishable under Section 302 of the Penal Code and sentenced him to undergo imprisonment for life and to pay a fine of Rs.2,000/- in default to undergo rigorous imprisonment for two years. 6. Without assailing the findings of the learned Sessions Judge, Sambalpur regarding homicidal nature of death of the deceased and proof of implication of the appellant in commission of the offence, Ms. C. Kasturi, learned counsel for the appellant would argue that it is not a case of culpable homicide amounting to murder punishable under Section 302 of the Penal Code. She further submits that this a case of culpable homicide not amounting to murder. 7. Mr. J. Katkia, learned Additional Government Advocate, however, submits that as successive blows by means of a 'batten' have been dealt on the sensitive part of the body of the deceased, this is a case of culpable homicide amounting to murder. 8. While dealing with the distinction between the culpable homicide amounting to murder and culpable homicide not amounting to murder, Hon'ble Supreme Court in the case of Virsa Singh vrs.- State of Punjab:, (1958) AIR SC 465 held: "That the prosecution must prove the following before it can bring a case under Section 300 of Indian Penal Code third clause. (1) It must establish, quite objectively, that a bodily injury is present. (2) The nature of the injury must be proved; these are purely objective investigations. (1) It must establish, quite objectively, that a bodily injury is present. (2) The nature of the injury must be proved; these are purely objective investigations. (3) It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. (4) It must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. The third clause of Section 300 of Indian Penal Code consists of two parts. Under the first part it must be proved that there was an intention to inflict the injury that is found to be present and under the second part it must be proved that the injury was sufficient in the ordinary course of nature to cause death. The words "and the bodily injury intended to be inflicted" are merely descriptive. All this means is, that it is not enough to prove that the injury found to be present is sufficient to cause death in the ordinary course of nature; it must in addition be shown that the injury found to be present was the injury intended to be inflicted. Whether it was sufficient to cause death in the ordinary course of nature is a matter of inference or deduction from the proved facts about the nature of the injury and has nothing to do with the question of intention." 9. In the case of Rajwant and another vrs.- State of Kerala:, (1966) AIR SC 1874 the Hon'ble Supreme Court held that two offences involve the killing of a person. They are the offences of culpable homicide and the more henious offence of murder. What distinguishes these two offences is the presence of a special mens rea, which consists of four mental attitudes and the presence of any of which the lesser offence becomes greater. These four mental attitudes are stated in Section 300 of the I.P.C. as distinguishing murder from culpable homicide. Unless the offence can be said to involve at least one such mental attitude it cannot be murder. These four mental attitudes are stated in Section 300 of the I.P.C. as distinguishing murder from culpable homicide. Unless the offence can be said to involve at least one such mental attitude it cannot be murder. Hon'ble Supreme Court further held that the first clause says that culpable homicide is murder if the act by which death is caused is done with the intention of causing death. An intention to kill a person brings the matter so clearly within the general principle of mens rea as to cause no difficulty. Once the intention to kill is proved, the offence is murder unless one of the exceptions applies in which case the offence is reduced to culpable homicide not amounting to murder. Xx xx xx The second clause says that if there is first intention to cause bodily harm and next there is the subjective knowledge that death will be the likely consequence of the intended injury. English Common Law made no clear distinction between intention and recklessness but in our law the foresight of the death must be present. The mental attitude is thus, made of two elements-(a) causing an intentional injury and (b) which injury the offender has the foresight to know would cause death. Therefore, for the application of third clause it must be first established that an injury is caused, next it must be established objectively what the nature of that injury in the ordinary course of nature is. If the injury is found to be sufficient to cause death one test is satisfied. Then it must be proved that there was an intention to inflict that very injury and not some other injury and that it was not accidental or unintentional. If this is also held against the offender the offence of murder is established. The last clause is ordinarily applicable to cases in which there is no intention to kill any one in particular which comprehends, generally, the commission of imminently dangerous acts which must in all probability cause death. In that case, the assailants conspired together to burgle the safe of the Base Supply Office on the eve of the pay-day and had collected various articles such as a Naval Officer's dress, a bottle of chloroform, a hacksaw with spare blades, adhesive plaster, cotton wool and ropes and in presence of that there was a murder. In that case, the assailants conspired together to burgle the safe of the Base Supply Office on the eve of the pay-day and had collected various articles such as a Naval Officer's dress, a bottle of chloroform, a hacksaw with spare blades, adhesive plaster, cotton wool and ropes and in presence of that there was a murder. So, the act of the assailants of that case was held to be done with the intention of causing such bodily injury as was likely to kill and the appellants' conviction under Section 302/34 of the I.P.C. was upheld by the Hon'ble Supreme Court. 10. Much prior to the judgment rendered by the illustrious Judge Vivian Bose in the case of Virsa Singh (supra), in the case of of Reg. vrs.- Govinda:,1877 1 ILR(Bom) 342, the distinction between the culpable homicide amounting to murder and the culpable homicide not amounting to murder as defined under Sections 299 and 300 respectively, of the I.P.C. has been pithily brought out by Justice Melvill as follows: The same table was adopted by the Hon'ble Supreme Court in the case of State of Andhra Pradesh vrs.- Rayavarapu Punnayya and Another:, (1976) 4 SCC 382 with the exception in clause (4) of Section 300 of the I.P.C. in the table i.e. the expression ", and without any excuse for incurring the risk of causing death or such injury as it mentioned above" was added. Thereafter, the Hon'ble Supreme Court held that "clause (b) of Section 299 of the I.P.C. corresponds with clauses (2) and (3) of Section 300 of the I.P.C. distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the intentional 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 in normal health or condition. It is noteworthy that the 'intention to cause death' is not an 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 particular victim, is sufficient to bring the killing within the ambit of this clause". The Hon'ble Supreme Court further held: "14. 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 particular victim, is sufficient to bring the killing within the ambit of this clause". The Hon'ble Supreme Court further held: "14. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health 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 in normal health or condition. It is noteworthy that the 'intention to cause death' is not an 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 particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b) appended to Section 300. 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 (1) with the intention of causing death; or (b) with the intention of causing such bodily injury as is likely to cause 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 ordinarily 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 without any excuse for incurring the risk of causing death or such injury as is mentioned above. 15. (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 without any excuse for incurring the risk of causing death or such injury as is mentioned above. 15. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. 16. In clause (3) of Section 300, instead of the words 'likely to cause death' occurring in the corresponding clause (b) of Section 299, the words "sufficient in the ordinary course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real, and, if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word "likely" in clause (b) of Section 299 conveys the sense of 'probable' as distinguished from a mere possibility. The words "bodily injury .........sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature. 17. The word "likely" in clause (b) of Section 299 conveys the sense of 'probable' as distinguished from a mere possibility. The words "bodily injury .........sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature. 17. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature." 11. Thus if any of the four conditions, enumerated below, is not satisfied, then the offence will be culpable homicide not amounting to murder. These are:- (i) the act was done with the intention of causing death;or (ii) 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 (iii) with the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinarily course of nature to cause death; or (iv) 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 without any excuse for incurring the risk of causing death or such injury as is mentioned above. 12. Keeping in view the aforesaid principles enunciated in the aforesaid judgments', we are of the opinion that in this case the prosecution has not established that the appellant had the intention of causing death of the deceased or causing such bodily injury as he knows to be likely to cause death of the person to whom the harm is caused. There is no material on record to show that the appellant knew that the bodily injury intended to be inflicted is sufficient in the ordinarily course of nature to cause death of the deceased or that there was knowledge on the part of the appellant that the act is so imminently dangerous that it must in all probability cause death. 13. Keeping in view the aforesaid facts of the case, we are of the opinion that the prosecution has failed to establish its case of culpable homicide amounting to murder punishable under Section 302 of the Penal Code. 13. Keeping in view the aforesaid facts of the case, we are of the opinion that the prosecution has failed to establish its case of culpable homicide amounting to murder punishable under Section 302 of the Penal Code. Rather, the prosecution has established its case of culpable homicide not amounting to murder punishable under Section 304, Part-I of the Penal Code. 14. Hence, the conviction of the appellant under Section 302 of the Penal Code recorded by the learned Sessions Judge, Sambalpur and sentence to undergo imprisonment for life is hereby set aside. Instead, the appellant is convicted for the offence under Section 304, Part-I of the Penal Code. It is borne out from the record that the petitioner is in custody since March 2008 and in the meantime, he has already undergone about 13 years of imprisonment. In our considered opinion the punishment of period already undergone for offence under Section 304, Par-I of the Penal Code shall subserve the interest of justice. Hence, he is sentenced to undergo imprisonment for the period already undergone. No separate sentence of fine is imposed, as the petitioner is a member of the scheduled tribe category and belongs to humble walks of life. He was also not able to engage a counsel of his choice, and therefore, State Defence Counsel was engaged to defend him before the learned trial court. He preferred appeal from jail and Amicus Curiae was appointed to argue the appeal in this Court. Hence, we are not inclined to impose any fine. Since he has already undergone the sentence imposed, the appellant be set at liberty forthwith, unless his detention is required in any other case. Accordingly, this JCRLA is disposed of. The Trial Court Records (T.C.Rs) be returned back to the trial court forthwith along with copy of this judgment.