Hadu @ Hada Gond vs State Of Orissa
2022 Latest Caselaw 3221 Ori

     THE HIGH COURT OF ORISSA AT CUTTACK

                       JCRLA No.15 of 2017

From the Judgment of conviction and order of sentence dated 16.09.2016
passed by the learned Addl. Sessions Judge, Nabarangpur in C.T. Case
No.130 of 2013(T).
                              -----------

Hadu @ Hada Gond           .......                          Appellant

                           -Versus-

State of Orissa           .......                           Respondent

___________________________________________________________
     For Appellant   : M/s. Subhalata Choudhury, Advocate &
                       Mr. Sarbeswar Behera, Advocate.

     For Respondent  : Mrs. Saswata Patnaik, Addl. Govt. Advocate
___________________________________________________________

      CORAM:

      THE HONOURABLE SHRI JUSTICE S. TALAPATRA
      THE HONOURABLE SHRI JUSTICE B. P. ROUTRAY

                             JUDGMENT

12th July, 2022

S. Talapatra, J. This appeal, by the convict (from Jail), arises from the

Judgment and order dated 16.09.2016 delivered in C.T. No. 130 of

2013(T) by the Addl. Sessions Judge, Nabarangpur. By the said

Judgment, the convict (hereinafter referred to as the appellant) has been

convicted under Section 302 of the IPC for intentionally causing death

of Deusu Gond by inflicting injuries on his head by means of Cudgel.

Pursuant to the said Judgment of conviction, the appellant has been

sentenced to suffer imprisonment for life with fine of Rs.10,000/-

(Rupees ten thousand) in default whereof, to undergo further R.I. for

one year for committing the offence punishable under Section 302 of

the IPC.

2. Briefly stated the prosecution case, as revealed, is that on

28.03.2013 at about 4.30 in the afternoon, when Deusu Gond (the

deceased) was proceeding through the village road, the appellant picked

up quarrel with him in front of the house of one Aditya Gond. There had

been heated exchange of words between the deceased and the appellant.

All of a sudden, the appellant, being enraged brought out a wooden stilt

from a nearby fence and started giving blows indiscriminately on the

person of the deceased. The deceased fell down on the ground with

bleeding injuries on his head and other parts of the body and became

unconscious. The people, who were present at the place of occurrence

during that time, shifted the injured deceased to the house of the

appellant and the appellant was asked to take the injured deceased for

medical treatment. During that time, the informant, namely Pradeep

Gond (P.W.5) appeared there and on hearing the incident, he shifted the

injured deceased to Jodanga Medical, where the injured deceased was

given preliminary treatment. The Medical Officer at Jodinga Medical

had referred the injured deceased to Umerkote Medical for better

treatment. But the deceased succumbed to his injuries before he could

be shifted to Umerkote Medical. On the following day at 10.30 A.M., an

FIR was lodged, which was registered as Raighar PS Case No.47/2020.

It has revealed from the records that the Investigating Officer visited the

spot, examined several witnesses, seized blood stained earth and sample

earth from the spot. The Investigating Officer had also seized the

weapon of offence i.e. the blood stained wooden stilt from the spot and

held inquest over the dead body of the deceased. The Investigating

Officer had arrested the accused, sent the dead body for post mortem

examination, seized the blood stained wearing pant of the appellant and

seized the apparels in the wearing of the deceased. That apart, the

Investigating Officer got the appellant medially examined and seized

biological samples, as collected by the Medical Officer. The

Investigating Officer received the Post Mortem report. The seized

weapon of offence was produced before the Medical Officer, who

conducted autopsy. On completion of the Post Mortem examination, the

materials as seized were sent to the Regional Forensic Science

Laboratory (RFSL), Berhampur for clinical examination and report.

After the investigation was complete, the investigating officer found a

strong prima facie case and filed the charge sheet (the report under

Section 173(2) of the Cr. P.C).

3. Having taken the cognizance, on 06.08.2013, the charge

was framed against the appellant for causing murder of Deusu Gond, the

deceased, under Section 302 of the IPC. The said charge was flatly

denied by the appellant.

4. In order to substantiate the charge, the prosecution adduced

as many as 22 witnesses in addition to the documentary evidence. The

appellant did not adduce any evidence in order to rebut or in his

defence. After recording of the prosecution's evidence, the appellant

was examined under Section 313 of the Cr.P.C. The appellant during the

said examination denied the incriminating evidence as concocted or as

untrue. Having appreciated the evidence as led in the trial, the impugned

Judgment has been returned by convicting the appellant. It has been

observed by the trial Judge that on scrutiny of the prosecution evidence,

it is found that P.W.1, P.W.10 & P.W.21 are the seizure witnesses in

respect of seizure of the wearing apparels of the deceased vide the

seizure list marked Ext.1. P.Ws. 4 & 13 are the witnesses before whom

the biological samples of the appellant, such as, nail clippings, blood

were seized by the investigating officer, vide the seizure list marked as

Ext.3. P.W.21 and P.W.3 are the seizure witnesses of the wearing pant

of the appellant vide the seizure list marked as Ext.2. P.W.6 has testified

that during the investigation, the investigating officer (P.W.22) effected

the seizure of cudgel (wooden lathi) from the house of P.W. 5 vide the

seizure list marked Ext.6. P.W.7, P.W.15, P.W.16, P.W.17 and P.W.20

are the witnesses in whose presence P.W.22 held inquest over the dead

body of the deceased. P.W.18 is the scribe, who had written the FIR

(Ext.5). P.W.11 has simply stated that, he heard about the murder of the

deceased by the appellant and he had seen the dead body of the

deceased lying in front of his house. P.W.14 is the witness of seizure of

sample earth and blood stained earth from the place of occurrence by

P.W. 22. P.W. 12, the wife of the deceased, has testified that she was

absent in her village on the day of occurrence. Having heard about the

occurrence, she had returned to her village and saw the dead body of the

deceased. P.W.5 (the informant) had not witnessed the occurrence, but

having information, he had filed the FIR. P.W.5 went to the house of the

appellant on hearing about the occurrence and found his brother (the

deceased) lying there with injuries on the back side of head and chest.

He was told that the appellant had inflicted those injuries on the person

of the deceased. P.W.5, as stated earlier, shifted the injured deceased to

the Jodenga Medical. Even though the Medical Officer had referred the

injured deceased to Umerkote Hospital for better treatment, but before

he could be taken to Umerkote Hospital, he succumbed to his injuries.

Immediately after his death, an FIR (Ext.4) was lodged before the

Police. So far as the culpability of the appellant is concerned, the

evidence of P.W.8 and P.W.19, who had given the eye-witness account

of the occurrence, was relied heavily by the prosecution. P.W.8 is a co-

villager of the deceased, in front of whose house, the occurrence took

place and P.W.19 is another brother of the deceased. P.W.8 has

categorically testified that he had intervened the quarrel and tried to

pacify both the appellant and the deceased but the appellant came with a

cudgel (somewhere referred, as the wooden lathi, which was seized) and

dealt blows on the chest of the deceased. Having received such blows,

the deceased fell down on the ground and lost sense. Out of fear, P.W.8

fled away from the spot.

5. In the Judgment, it has been observed that, there was no

reason (at least there is nothing in the evidence) for P.W.8 to falsify in

order to implicate the appellant. Even P.W.19 has testified that he saw

the accused hitting hard on the person of the deceased with the cudgel.

The deceased received injuries on his chest and head. Some villagers

caught hold of the appellant. Subsequently, the injured deceased was

shifted to the Medical (one hospital) but the life of the deceased could

not be saved. The trial Judge found that the eye witnesses are credible

and held that the appellant dealt blows by means of cudgel on the head

of the deceased, which is a vital part and caused bleeding injuries. The

evidence of P.W.9 (the Medical Officer) has corroborated the evidence

of P.W.8 and P.W.19 as regards the injuries inflicted on the head of the

deceased. P.W.9 (the Medical Officer), who conducted the autopsy by

dis-section of the dead body, found the cause of death due to injury to

occipital region of the head and presence of intracranial haemorrhage

which was caused for damage of the vital part of the brain leading to

cardio-pulmonary failure. P.W.9 has categorically stated in the trail that

the internal injury to the brain (of the deceased) has been caused by

external injuries, inflicted on the head. Those external injuries are the

primary cause of the death. It has been observed by the trial Judge on

appreciation of evidence as follows-:

......."there is clear evidence on record that the accused after giving blows by cudgel on the person of the deceased went to his house and again returned to the spot and dealt cudgel blows on the chest. The above facts and the conduct of the accused clearly goes to show that the accused has had required intention to cause death of the deceased......"

It has been further observed that the transaction of crime would stand to

show the mens rea with sufficient intention to cause death of the

deceased. Based on such findings, the judgment of conviction as

challenged by this appeal has been passed. Counsel for the parties did

not challenge the finding so far it concerns with the death of the

deceased, but so far the knowledge and intention as concerned with

dealing with the blows have been seriously questioned.

6. Mr. Behera, learned counsel appearing for the appellant has

submitted that it is apparent from the evidence that the culpable

homicide in the case in hand cannot be termed murder, as the same has

been committed without any pre-meditation, in the heat of passion, upon

a sudden quarrel and without the offender having taken undue

advantage or acted in a cruel and unusual manner. Thus, the indictment

or the charges framed under Section 302 of the IPC is bound to fall

through, in as much as the conduct of the appellant is squarely covered

by Exception 4 of Section 300 of the IPC. Mr. Behera, learned counsel,

has pointed out that the appellant is languishing in jail since 09.03.2013.

Mr. Behera has strenuously contended that the conviction is liable to be

converted under Section 304, Part-II of the IPC against the appellant for

committing culpable homicide not amounting to murder.

7. Mrs. Saswata Patnaik, learned Addl. Government Advocate

appearing for the State has seriously refuted the said submission

advanced for the appellant. She has stated that there are clear two parts

in the transaction of crime. The first part constitutes sudden quarrel and

heated exchanged of words and assault by the appellant on the deceased

and the second part is the appellant's going to his home, bringing a

cudgel (wooden lathi) and assaulting the deceased severely on the vital

parts of the body. If it were that the appellant has only committed the

first part of the assault, such conduct would have come under Exception

4 of Section 300 of the IPC. But the second part of the transaction

clearly demonstrates that the assault was done with intention of causing

of bodily injuries and the bodily injuries were intended to be inflicted.

The said fact having been established by evidence is adequate to hold

that such assault in the ordinary course of nature is likely to cause death.

Illustration thirdly under Section 300 of the IPC being conformed to, the

said culpable homicide is murder. Hence, no interference of this Court

is called for in the impugned Judgment of conviction.

8. Mr. Behera, learned counsel has placed reliance on a few

decisions to buttress his contentions. In Santosh v. State of Madhya

Pradesh reported in AIR 1975 SC 654, the Apex Court has observed

that the Sessions Judge appears to have overlooked the various clauses

of Section 300 of the IPC. An intention to kill is not required in every

case. A knowledge that the natural and the probable consequences of the

act would be death will suffice for a conviction under Section 302 of the

IPC. Mr. Behera, learned counsel has submitted that there had been no

knowledge of probable consequences, as from the records it appears that

both the appellant and the deceased were inebriated. As such, as

emphasized, the element of knowledge cannot be inferred.

9. In order to nourish the submission on interpretation, it has

been contended by Mr. Behera, learned counsel that, there is no

evidence of any previous ill-feeling or enmity between the appellant and

the deceased. The appellant did not intend to cause of death or bodily

injuries which are sufficient in the ordinary course of nature, to cause

death. But as he dealt the blows on the vital part of the body, he has

been presumed to have that knowledge that, by that act, he was likely to

cause death. If a person is said to have given a blow on a vital part of

the deceased, it has been held in several cases that no one can impute

knowledge that such an injury was likely to cause death. The offence, in

the circumstances, would fall under Section 304, Part II, of the IPC.

In Lachhman Dhublia v. the State of Odisha, reported in

1984 CRI. L.J. 1116, as referred by Mr. Behera, learned counsel for the

appellant, several decisions of the Apex Court have been relied by this

Court:

"9. In Charmru Budhwa v. State of Madhya Pradesh, AIR 1954 SC 652: 1954 Cri LJ 1676 the accused was found to have given one blow with a lathi on the head of the deceased and their Lordships held that when the fatal injury was inflicted by the accused on the head of the deceased by only one blow it could as well be that the act by which death was caused was not done with the intention of causing death or causing such bodily injury as was likely to cause death.

In Willie (William) Slaney v. State of Madhya Pradesh, AIR 1956 SC 116: 1956 Cri LJ 291, the accused gave a single blow with a hockey stick on the head of the deceased and he was held guilty for the offence under Section 304, Part II, I.P.C.

In Laxman Kalu Nikaje v. State of Maharashtra; AIR 1968 SC 1390 : 1968 Cri L J 1647, the accused dealt a single blow with a weapon on the chest of the deceased. The

injury was found to be situated 2" below the outer 1/3" of right clavicle on the right side of the chest and penetrated to the depth of 2" into the chest cavity. Death was caused mainly because it cut the auxillary artery and veins and caused shock and haemorrhage leading to the death. In these circumstances, their Lordships held that the offence came within the third part of Sec. 299, I.P.C. Accordingly, the conviction under Section 302, I.P.C. was altered to one under Section 304 I.P.C.

In Mirza Hidayatullah Baig v. State of Maharashtra, AIR 1979 SC 1525 : 1979 Cri LJ NOC 168, the accused dealt a single blow on the head of the deceased with a walking stick. It was held that the appellant did not have the intention to cause the particular injury which resulted from the blow given to the deceased. But as he aimed the blow at the head of the deceased which is a vital part of the body he must be presumed to have the knowledge that death was the likely result of that act. Accordingly, the conviction under Section 302, I.P.C. was altered to one under Section 304, Part II, I.P.C.

In Shankar v. State of Madhya Pradesh : AIR 1979 SC 1532 : 1979 Cri LJ 1135, the accused caused an injury on the neck of the deceased with a dagger. Their Lordships found that there was no premeditation for the murder and that the accused had no intention of causing the particular injury that he caused to the deceased. But he must be deemed to have the knowledge that death may be caused by

his act. Accordingly, the conviction under Section 302, I.P.C. was altered to one under Section 304, Part II, I.P.C.

In Hari Ram v. State of Haryana, AIR 1983 SC 185 :

1983 Cri LJ 346, the accused in the heat of an altercation seized a jelli and thrust it into the chest of the deceased. On the evidence, their Lordships held that the accused had no intention to kill and accordingly he was convicted under Section 304, Part II, I.P.C.

In Jawahar Lal v. State of Punjab, AIR 1983 SC 284 : 1983 Cri LJ 429, the accused had given a solitary blow of knife to the deceased which fell on his chest. The accused had no malice against the deceased. He had no quarrel with the deceased and the accused did not make any attempt at giving a second blow. Their Lordships held that the accused could not be said to have intention to cause that particular injury and that even if the injury proved to be fatal, the case would not be covered by Section 300, Para 3, but the accused could be attributed to the knowledge that he was likely to cause death. Accordingly the conviction under Sec. 302, I.P.C. was altered to one under S. 304, Part II, I.P.C."

10. Mr. Behera, learned counsel has contended that the

appellant cannot be attributed to have intention to cause that particular

injury and that, even if the injury is proved to be fatal, the case would

not be covered by thirdly under Section 300, As the appellant cannot be

attributed to have the knowledge that his act was likely to cause an

injury which may cause death and hence, the conviction is liable to be

altered to Section 304, Part-II of the IPC.

11. For appreciation of the submission of learned counsel for

the parties, it would be appropriate to evaluate the evidence, as recorded

in the trial, in a meaningful manner. There is no dispute that PWs.8 and

19 are the eye witnesses of the transaction of crime. The evidence of

P.W.9 came to corroborate the ocular evidence of P.Ws.8 and 19. As

already noted, the remaining witnesses including P.W.22, i.e., the

investigating officer are of formal nature and their evidence had little

ramification on the finding of the conviction. As such, this Court would

read a little extensively the evidence of P.W.8 and P.W.19. Sudu Rout,

P.W.8 has testified, after identifying the appellant as the perpetrator,

that in the previous year meaning 2013, at about 04:00 P.M., the

appellant assaulted Deusu Gond with lathi. He intervened and tried to

pacify them. The appellant left the spot thereafter, went to his house and

returned with lathi and again assaulted Deusu on his chest. Deusu fell

down and became unconscious. Out of fear, he left the spot. His

statements could not be dented in the cross-examination.

12. P.W.19 namely Bhika Gond testified in the trial and stated

that the deceased is his brother. About 3 years back (from the date of

recording of the statement of P.W.19) at about 04:00P.M., the appellant

had picked up quarrel with his brother (the deceased) near the house of

Ghasi and assaulted him by means of a piece of wood. As a result, his

brother sustained injuries on his chest and head. The villagers arrived

there and caught hold of the appellant. His brother (the deceased) was

taken to the hospital where he died. In the cross-examination, P.W.19

has admitted that, he does not know the date of occurrence. His house is

100 meters away from the spot. He has made a very significant

statement that Sudu (P.W.8) and Udit, not examined in the trial, and

himself were present in the scene of occurrence. His statement in the

cross examination requires to be reproduced and is reproduced

hereunder:

"At the time of my arrival, accused was assaulted the deceased and the deceased was lying on the ground. I cannot say if my brother (deceased) and the accused were addicted with liquor.P.W.19 has stated the diameter of the Lathi used by the appellant was about 4 inches."

He has denied the fact that the appellant neither quarreled with the

deceased nor assaulted the deceased. The evidence of P.W.9, Dr. Ashis

Ranjan Prusty is vital for the case in hand in as much as he had carried

out the post-mortem examination over the dead body of Deusu Gond

(the deceased).

According to the post mortem examination report (Ext.6) the following

external injuries were found on the dead body of the deceased.

i) Lacerated wound of size 2 c.m. * 2 c.m. * 2 c.m. on left parietal region,

ii) Lacerated wound of size 2 * 2 * 1 c.m. on occipital region,

iii) Abrasion with swelling on both scapular region.

P.W. 9 has observed in the report as under:

"Wall, ribes and cartilages were intact and congested, pleura was intact and congested. Larnyx and trachea were intact and congested and contained frothy exudate. Right lung intact, congested and filled with blood. Left lung intact, congested and filled with blood."

13. P.W.9 has clearly stated that the cause of death is due to

injury in the occipital region and presence of intracranial haemorrhage,

which caused damage to the vital centre of brain and that led to cardio-

pulmonary failure. According to him, the nature of death is homicidal.

There was no meaningful cross-examination. Apart that, P.W.9 has

categorically opined that, the injuries found on the body of the deceased

can be caused by the recovered weapon of offence (Ext.7). The seizure

of the cudgel has not been contested by the counsel for the appellant.

What appears from the reading of the evidence is that according to

P.W.9, there was no external injury over the chest nor were there any

internal injuries under the ribs. Even there was no lacerated injury or

swellings on the chest of the deceased. The post mortem examination

was commenced within 24 hours of death. Even then, there is no sign of

any injury or sign of assault on the chest of the deceased. Hence, the

part of the evidence of P.W.8 that the appellant went to his house and

returned with a lathi and thereafter assaulted Deusu on his chest cannot

be believed by this Court. P.W.19 did not tell the narrative of assault

after return of the appellant from his house, as indicated by Mrs. S.

Patnaik, learned counsel appearing for the State. However, P.W.8 had

introduced that story. There is no reason to disbelieve him as a whole.

But his testimony to the extent of assaulting on the chest has become

clouded by the post mortem report. It has not been contested that Deusu

was seriously injured and later on, he succumbed to those injuries.

Therefore, what transpires is that, there was heated exchange of words

and out of rage, the appellant struck blow by a lathi (the wooden stilt)

on the left parietal region and on occipital region. The assault on the

other parts of the head cannot be ruled out, as P.W.9 has categorically

observed that abrasions and the swelling on both scapular region were

found. In Santosh (supra), the injuries were not on the vital parts of the

body and it has been observed that, injuries on the vital parts of the

body was deliberately avoided and hence, no inference on intention to

murder could be drawn. Knowledge of probable consequences of an act

would suffice for conviction under Section 302 IPC. In this regard, Mr.

Behera, learned counsel has tried to impress upon this Court that both

the deceased and the appellant was inebriated at the time of occurrence.

Hence, knowledge of the consequence cannot be inferred. We are

constrained to observe that, there is no evidence that the appellant or the

deceased were in inebriated condition. The suggestion that was

projected from the defence was squarely denied by the witness. Hence,

the said contention is bound to fall through.

14. We are to weigh now the impact of the evidence that the

appellant dealt two vital blows on the left parietal region and on the

occipital region. We cannot be oblivious that the injury that was

inflicted to occipital region of the head has caused the damage to the

brain center, which was instrumental to cardio-pulmonary failure. The

cardio-pulmonary failure has been inferred as the cause of death by

P.W.9 and such observation has not been challenged by the appellant.

As we have already observed that there were more than two assaults, as

both sides of scapular regions had abrasion with swelling. Those stand

to show cruel and unusual manner of assault. What has been observed

by this Court in Lachhman Dhublia (supra) having referred to several

decisions of the Apex Court is that, if there was a single blow, in the

case that the accused did not make any attempt to give the second blow,

it may be held that the accused did not have intention to cause that

injury and that even if the injury is proved to be fatal, the case would

not be covered by Section 300 thirdly. But in that case, the accused

would be attributed to the knowledge that he was likely to cause an

injury which might cause death. Accordingly, the conviction under

Section 302 of the IPC was altered to one under Section 304, Part-II of

the IPC. The present case is not a case of single blow. The transaction of

crime is in two parts. There were several blows according to the post

mortem report on the scapular region and out of those injuries, the

injury that was inflicted by the appellant on occipital region was fatal.

Hence, it cannot be inferred that the appellant did not have any intention

to cause the particular injury. On the contrary, we are satisfied that the

evidence, as adduced by the prosecution, is sufficient to show that the

said assault was done with intention of causing bodily injury and such

injury as intended to be inflicted is adequate in ordinary course of nature

to cause death.

15. Hence, the prosecution has been successful in proving the

charge of murder. In view of the above observations, no interference in

the Judgment of conviction or in the order of sentence is called for.

16. In the result, the appeal stands dismissed.

17. Send down L.C.Rs. forthwith.

(S. Talapatra) Judge

(B.P. Routray) Judge Orissa High Court, Cuttack.

The 12th July, 2022/Subhasis Mohanty, P.A./ R.R. Nayak, Jr. Steno.