Orissa High Court
Sangadi Sania vs State Of Odisha on 2 August, 2023
F.I.R. IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA NO. 34 of 2005
From the judgment and order dated 03.04.2003 passed by Shri
G.R.Purohit, Adhoc Addl. Sessions Judge, Jeypore in Criminal
Trial No.44 of 2012.
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Sangadi Sania ........ Appellant
-Versus-
State of Odisha ........ Respondent
For Appellant : Mr. Ambika Prasad Mishra, Advocate
For Respondent : Mr. Prem Pattanaik, AGA
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE BISWANATH RATH
AND
THE HONOURABLE SHRI JUSTICE M.S. SAHOO
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Date of hearing: 11.05.2023 Date of judgment : 02.08.2023
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M.S.SAHOO, J The appellant, in the present Jail Criminal Appeal,
Sangadi Sania, is aggrieved by the judgment dated 3.4.2003
passed by the learned Adhoc Addl. Sessions Judge, Jeypore for
finding him guilty of committing offence punishable U/s.302 of the
Indian Penal Code, 1860 (in short 'IPC'), sentencing him to
imprisonment for life and to pay a fine of Rs.1,000/- (Rupees One
thousand) or in default of payment to undergo further rigorous
// 2 //
imprisonment for three months after completion of Criminal Trial
No.44 of 2012, arising out of G.R. Case No.451/2000,
corresponding to Pottangi P.S. Case No.32 of 2000 committed by
the learned S.D.J.M., Koraput.
Factual Matrix
2. The appellant was the sole accused facing trial before the
learned Sessions Court. The incident alleged, occurred on
21.07.2000 at about 8.00 P.M. in village Sishaguda within the
jurisdiction of Potttangi Police Station in the district of Koraput.
The first information report (FIR for short) was lodged at about
9.00 P.M. on 21.07.2000 in the concerned Police Station after
which the P.S. Case No. 32 of 2000 was registered by the Officer-
in-charge.
2.1. The FIR was orally stated before the Officer-in-charge of the
Police Station who reduced the oral statement into writing in Oriya.
The informant-Gumurabali Syama (P.W.4) put his thumb
impression after the contents of the F.I.R. was explained and read
over to him. Translated to English the F.I.R. narrates as follows :
"I, Gumurabali Syama, son of late Gumurabali Mulia,
aged about 27 years, resident of village Sishaguda, P.S.
Pottangi. Dist.Koraput today on 21.07.2000, 9.00 P.M.
along with my co-villager Majhi Balu having come to the
Police Station, lodge the F.I.R. orally that younger brother
of Songadi Sonia has married my younger sister. Earlier
my brother Gumurabali Sukra had altercation (madagola)
with Sonagadi Sania. Today i.e. 21.7.2000 Friday at about
8.00 P.M. in the evening my brother Sukra after having his
food was at home. At that time Songadi Sania went and
called my brother as "Samudhi". Sukra listening to the
call came out of house. After Sukra came out of house
Sania without any further talk, stabbed Sukra with knife
three to four times. My brother Sukra shouted Pesi Sania
stabbed with knife. Me and Majhi Balu listening his call
came out. While trying to hold Sukra, he felled down,
intestine came out, he died at the said spot. Sania went
away and hid him somewhere. Hearing the shout, persons
// 3 //
from our Sahi came and saw that my brother in front of
his house, where he was stabbed, was lying dead. He had
bleeding injuries at chest and stomach. His intestines
came out. The writing has been made as per my statement
which was heard by me read by the Babu. The same
being correct, I put my thumb impression.
3. We heard the detailed arguments of Mr.Ambika Prasad
Mishra, learned Legal Aid counsel for the appellant and Mr. Prem
Pattanaik, then functioning as a learned Additional Government
Advocate for the State.
Learned counsel for the appellant as well as learned
Additional Government Advocate for the State have filed their
written argument after exchanging copies thereof.
Prosecution Case
4. In the trial Prosecution alleged that the accused Sangadi
Sania and deceased Gumuraballi Sukra had prior enmity. On
21.07.2000 at 8.00 P.M. in the night, while the deceased and his
wife were in their house, the accused came there and called the
deceased by saying "Samudhi- Samudhi" and when the deceased
came out of the house being followed by his wife, the accused all
on a sudden dealt stab blows by a knife on the chest and belly
region of the deceased and fled away from the spot. The deceased
cried/shouted, as a result of which, the neigbours P.Ws.3 and 4
rushed near him but the deceased immediately fell down on the
ground and died at the spot.
4.1 As per the narrative of the prosecution P.Ws.3-Majhi Bulu
and P.W.4-Gumurabali Syama (informant) were the neighbours
who immediately came to the spot hearing cries of the deceased.
P.W.5-Gumurabali Sashi is the son of the deceased. P.Ws.6 & 7
are independent witnesses. P.W.8 : a police constable is the
// 4 //
seizure witness. P.W.9 is the Investigating Officer. P.W.1 is the
Medical Officer who conducted post-mortem examination.
4.2 As per statement of P.W.9, Officer-in-charge, while working
at Pottangi Police Station he received oral report from P.W.4,
reduced it into writing. The I.O. had made inquest and sent the
dead body for post-mortem examination, seized blood stained earth
and sample earth from the spot and prepared the spot map. On the
next day of the incident i.e. on 22.07.2000. The I.O. arrested the
accused, seized the wearing apparels of the accused on
23.07.2000. According to the I.O., he had recovered the blood
stained knife from a bush nearby the Anganabadi centre of the
village. Subsequently he sent the knife, the wearing apparels of the
accused, the wearing apparels of the deceased and the sample
earth and blood stained earth for chemical examination.
5. Learned trial court has relied upon evidence of P.Ws.2 to 5
and P.W.1 to hold the appellant guilty. Wife of the deceased P.W.2
has been treated to be the eye witnesses to the occurrence.
6. The defence did not examine any witness.
Appellant's contentions
7. It is submitted by the learned counsel for the appellant that
the evidence adduced by P.W.2 is contradictory to the statement
made by P.Ws.3, 4 and 5. It is the specific statement of P.W.2 in
her examination in chief that "My husband came out of the house,
followed by me". In her cross-examination, she has deposed to the
suggestion "It is not a fact that I had not stated to the I.O. that I
came to outside following my husband." However, on confrontation
to the I.O. (P.W.9), the I.O has clearly stated "P.W.2 did not state
before me that she followed her husband-the deceased to outside."
Therefore, for the first time, P.W.2 has stated before the trial court
about her presence at the spot. However, the learned trial court
// 5 //
has placed much reliance on the said evidence. P.W.4 (Informant)
has stated in his examination in chief that "The wife of the
deceased told there that Sania stabbed her husband". In his cross-
examination, he has stated that he has informed the I.O. (P.W.9)
while lodging report. However, the F.I.R. is silent about it.
Nevertheless, the I.O.(P.W.9) in his cross-examination has stated
that "In the F.I.R. the informant has not mentioned that he heard
from the wife of the deceased that Sania stabbed her husband."
There is apparent contradiction in the deposition of P.W.3 and
P.W.4, who were admittedly post occurrence witnesses. The
statement of P.W.5, who is the son of the deceased also creates
doubt in the veracity of the evidence adduced by P.W.2. P.W.5 has
stated in his cross-examination that "My mother came and called
me and thereafter I went to the spot." Nevertheless, it was a dark
night as stated by the informant (P.W.4) in his cross-examination
and there was no electricity. Therefore, in face of so many
contradictions in the statement of witnesses, a conclusion cannot
be definitely arrived at that the appellant is the author of the
crime.
7.1 It is further submitted by the learned counsel for the
appellant that the I.O.(P.W.9) has recovered the alleged weapon of
offence, which is a folding knife, 7" long in total, having 3" edge
and 4" handle; (as reveals from the details of properties seized at
Column-12 of the Final Report) from a bush nearby the Anganbadi
centre on 23.07.2000. Accordingly, the I.O. had prepared seizure
list (Ext.11) which was signed by two witnesses, i.e. Pujari
Mukunda and Gajibali Uma Moheswar Rao. However, the above
witnesses were not examined by the prosecution during trial to
substantiate the recovery of the weapon of offence (M.O.1). The
M.O.I was sent to the Regional Forensic Science Laboratory
// 6 //
(R.F.S.L.), Berhampur for chemical examination. The chemical
examination report (Ext.13) does not reveal presence of blood in
the knife. Neither any procedure was followed during recovery of
M.O.1 nor the witnesses to Exhibit-11 were examined by the
prosecution, which casts doubt in the veracity of the prosecution
allegation against the appellant.
7.2 It is further contended by the learned counsel for the
appellant that the P.W.1 is the doctor, who had conducted post
mortem on the deceased and found 5 numbers of the injures on
his persons. In his deposition in chief, he has stated that injury
No.4 and 5 can individually cause death in the ordinary course of
nature. Although MO-1(knife) was produced before him, yet, in the
cross-examination, he has deposed that "My report does not reveal
blood stains in the knife", which also casts doubt with regard to
the weapon of offence, as alleged by the prosecution since in the
chemical examination report (Ext.13) no opinion was given with
regard to presence of blood.
7.3 It is further contended by the learned counsel that all the
prosecution witnesses from P.W.2 to P.W.5 are the immediate
relatives of the deceased and due to the fact that the deceased was
taken to custody for assaulting the appellant some times before, he
has been falsely implicated in this case by these interested
witnesses.
Submissions on behalf of State-Respondents
8. Per contra the learned Additional Government Advocate
supported the judgment by submitting that learned trial court has
taken relevant evidence on record into consideration and the
prosecution has proved the case beyond all reasonable doubts.
// 7 //
Analysis
9. The learned trial court has dealt with the requirement of
proving charge under Section 302 IPC in paragraph-4 of the
judgment which is quoted herein :
"To substantiate the charge, the prosecution has examined
nine witnesses, out of whom P.W.1 is the Medical Officer,
who had conducted the post-mortem examination, P.W.2 is
the wife of the deceased, P.Ws.3 & 4 are the neighbours,
who immediately came to the spot, hearing the cry of the
deceased, P.W.5 is the son of the deceased, .W.6 & 7 are
independent seizure witnesses, P.W.8-a police constable is
also a seizure witness, and P.W.9 is the I.O. The accused
has not examined any defence witness.
Brief Narration of important witnesses
10. The statement of P.W.2 that has been relied upon by the
learned trial court is reproduced herein for reference :
"The deceased is my husband. I know the accused. The
occurrence took place about three years back on a Friday
at about 8.00 P.M. in the night. I was inside my house
along with my husband. At that time the accused came to
our house and called my husband 'Samundhi-Samundhi'.
My husband came out of the house, followed by me. Then
the accused stabbed my husband on his chest, belly, thigh
etc. by means of a knife and fled away from the spot. My
husband cried 'Pessi Saia (P.W.4), Busi Dela-Bogi Asso'.
Hearing the shout of my husband Syama and Bolu (P.W.3)
came to the spot. My husband fell down at the spot and
died. Due to the stab blow in the belly the intestine had
came out M.O.I is the knife used by the accused to stab my
husband."
P.W.2 in his cross-examination has stated there is only one
room in our house. Houses of Patu Miluku, Batu Damana, Batu
Jambada and Singudi Langu situate near our house. There is no
electricity nearby the spot of occurrence. Ours is Sundhi Sahi. The
houses of Syama and Bolu is at a distance of 25 to 30 ft from my
// 8 //
house. It is not a fact that I had not stated to the I.O. that I came
to outside following my husband.
The version of P.W.2 has been treated to be eyewitness
account by the learned trial court to convict the appellant.
10.1 The evidence of P.W.3 relied upon by the learned trial court
is reproduced herein :
"I know the accused. I also know the deceased. My house is
very close to the house of the deceased having a common
court-yard. The occurrence took place on a Friday about two
years and 6 months back, at about 8.00 P.M. in the night.
By then I was in my house. Hearing the cry of deceased
Sukra 'Pesi Sania Churire Busi Deba-Asore Bulu'. I came
running to that spot. Syama also came running there. His
house is also near my house. I caught hold of the injured
but he fell down and died. There was heavy bleeding from
the injures on his chest belly. The intestine had come out.
Syama went in search of the accused. Thereafter myself
and Syama went to Pottangi P.S. and orally reported the
incident to the police officer, which was reduced to writing."
P.W.3 in his cross-examination has stated the earlier case
against the accused for assaulting him had been compromised. He
has stated :
"It is a fact that I had not stated to the I.O. that
before two months of the incident the accused had been
released from jail. I am of Tala Sahi. The house of Sukra is
in Sundhi Sahi. Due to demarcation by the road there is
Tala Sahi and Gundhi Sahi. There was no electric light in
the house of the deceased. The house of the accused is in a
different Sahi. In our house, my parents and my three
children are residing. My house adjoins the house of
Syama. The house of Batu Milku, Batu Jhabada and
Singuda Lengu are near the house of the deceased. There
are two salap trees in front of the house of the deceased. In
Syama's house his wife and one child are residing. We saw
the accused while he was fleeing away from a distance of
10' from us. I cannot say the wearing apparels of the
accused or myself or Shyama at the relevant time. Two
police came to the spot in the very night after I lodged
report. I cannot say the details of the F.I.R. scribed by the
police. The deceased is the cousin elder brother of my
// 9 //
father. The other neighbours did not come to the spot
immediately. It is not a fact that by the time of my arrival
Sukra had already died. I did not see the accused giving the
actual stab blow. It is not a fact that Syama did not chase
the accused to trace out him. It is not a fact that I have not
stated to the I.O. that Syama chased the accused to catch
him. It is not a fact that the accused did not stab the
deceased.
10.2 The evidence of P.W.4 relied upon by the learned trial court
is reproduced herein :
"I know the accused and the deceased. About three years
back on a Friday at about 8.00 PM. In the night, I was at
my house. Sukra raised halla 'Sania Busila-Sania Busila'.
Then I rushed near his house. Balu had first arrived there
and thereafter I arrived. The wife of the deceased told there
that Saia stabbed her husband. I went in search of the
accused but could not get him. Then myself and Bolu went
to the police station to report. I put my L.T.I in the report
scribed by the police."
P.W.4 in cross-examination has stated the following :
"I cannot say after how much time of the arrival of Balu I
arrived at the spot. By the time of my arrival Sukra was
already dead. There is no electric connection to my house
or Balu's house. It was dark night. I have only heard the
deceased crying 'Mari Galli'."
10.3 Statement of P.W.5 relied upon by the prosecution which
is quoted herein :
"I know the accused. Deceased is my father. The
occurrence took place on a Friday at about 8.00 P.M. about
three years back. I was in my house. I heard my father
crying 'Pesi Sania Busi Dela'. Hearing this I came to
outside and found that the accused was going away from
the spot. My mother was catching hold of my father. Bolu
and Syama (P.Ws.3 and 4 also came there). My father had
bleeding injuries and he died at the spot."
In cross-examination P.W.5 has stated the following :
// 10 //
"My mother came and called me and thereafter I went to
the spot. There is no electricity nearby our houses. The
witness volunteers-There was moon light. After my
arrival, Syama and Balu came there."
11. The evidence of the Investigating Officer P.W.9 discloses
that he was the officer in charge of the Pottangi Police Station
when the matter was reported i.e. on 21.7.2000, he reduced the
oral statement into writing, conducted investigation, registered the
P.S. Case. He proved the contents of the following exhibits and his
signature on these exhibits : F.I.R. (Ext.7), The Inquest Report
(Ext.4), Deadbody Challan (Ext.8), Seizure list (Ext.9), Spot Map
(Ext.10). He has stated to have arrested accused on 23.7.2000.
Forwarded him to court. He has not specifically stated regarding
when he seized the weapon of offence, but has stated that the
weapon of offence, knife was sent to the Medical Officer with a
query (Ext.3/2 containing his signature Ext.3/3). He has further
stated that the seized articles were sent to the Regional Forensic
Science Laboratory, Berhampur through the S.D.J.M., Koraput
under his forwarding letter Ext.12. The I.O. also proved the
Chemical Examination Report (Ext.13). The knife was marked as
M.O.I. In his cross-examination the I.O. has stated that I have not
sealed M.O.I at the time of sending it to the Medical Officer, for his
opinion. P.W.2 did not state before me that she followed her
husband-the deceased to outside. P.W.3 has not stated before me
that he chased the accused but stated that he searched for the
accused with a torch light. In the F.I.R. the informant has not
mentioned that he heard from the wife of the deceased that Sania
stabbed her husband. P.W.4 had not stated before me that her
mother was holding her father. I.O. has stated he has not
mentioned in the case diary whether it was moonlit night or dark
night. Knife like M.O.I is commonly available in the market.
// 11 //
12. This Court notes that the autopsy surgeon, P.W.1 proved the
post-mortem report regarding provision of the knife stated to be the
weapon of offence and in his cross-examination he has stated as
follows :
"I have not mentioned in the report as to who produced the
knife before me. In the P.M. report I have not mentioned
that the injuries was sufficient to cause death in ordinary
course of nature. I have not mentioned that injury no.4 and
5 or any of the injury were sufficient to cause death in the
ordinary course of nature. I did not notice blood stained on
the nail clippings of the accused. I have not taken the
signature of the accused in Ext.2. My report does not
reveal blood stains in the knife. The knife was examined in
presence of L/C 118 B.N. Dhalasmanta, but I have not
taken his signature in the report Ext.3.
Regarding the further steps taken by the autopsy surgeon,
he in his cross examination has stated thus :
"I have not drawn the blood group of the accused. I have
not mentioned in the post-mortem report about the nature
of the injuries whether those were simple or grievous
because incised wounds are grievous in nature"
13. The chemical-examination report, which has been marked as
Ext.13 reveals that only on the wearing apparels of the deceased,
human blood of 'O' group was detected, no blood stain could be
detected in the knife as it had deteriorated and similarly in the full
shirt of the accused, human blood was detected but no grouping
could be made as it had deteriorated.
Brief Narration of important M.O. produced
14. From the chemical examination report Ext.13 it is apparent
that the wearing apparel of the accused Exts. D & F were found not
to contain any blood stain. The knife marked as E by the Chemical
Examiner. No opinion was expressed regarding origin, group
marks and regarding stain on the knife. The nail clippings of the
// 12 //
accused marked as F by the chemical examiner were found by the
chemical examiner not to contain any blood.
Case law relied upon by the learned State Counsel
15. Since the learned trial court has given no finding as to
whether the recovered weapon was used for committing the crime
though it was produced as M.O.I., the learned Counsel for the
State has relied on the judgment rendered by the Hon'ble Supreme
Court in State through the Inspector of Police v. Laly @
Manikandan & another Etc. : 2022 SCC OnLine 1424.
Paragraph-7 of the said judgment is reproduced herein :
"7. The submission on behalf of the accused that as the
original informant - Mahendran has not been examined
and that the other independent witnesses have not been
examined and that the recovery of the weapon has not
been proved and that there is a serious doubt about the
timing and place of the incident, the accused are to be
acquitted cannot be accepted. Merely because the original
complainant is not examined cannot be a ground to
discard the deposition of PW1. As observed hereinabove,
PW1 is the eye witness to the occurrence at both 9 the
places. Similarly, assuming that the recovery of the
weapon used is not established or proved also cannot be a
ground to acquit the accused when there is a direct
evidence of the eye witness. Recovery of the weapon used
in the commission of the offence is not a sine qua non to
convict the accused. If there is a direct evidence in the form
of eye witness, even in the absence of recovery of weapon,
the accused can be convicted. Similarly, even in the case of
some contradictions with respect to timing of lodging the
FIR/complaint cannot be a ground to acquit the accused
when the prosecution case is based upon the deposition of
eye witness." [Emphasis supplied]
In the said decision rendered by the Hon'ble Supreme Court
it has to be noticed that the conviction was based on the evidence
of the eye witness therein i.e. P.W.1.
16. Learned State Counsel has also relied on the decision of the
Hon'ble Supreme Court in Criminal Appeal No. 739 of 2017
// 13 //
decided on July 14, 2022 in the case of Shahaja @ Shahajan
Ismail Mohd. Shaikh v. State of Maharashtra : 2022 SCC
OnLine SC 883; regarding appreciation of the evidence of an eye
witness. At para-27 the Hon'ble Apex Court held that
"27. The appreciation of ocular evidence is a hard task.
There is no fixed or straight-jacket formula for appreciation
of the ocular evidence. The judicially evolved principles for
appreciation of ocular evidence in a criminal case can
be enumerated as under:
I. While appreciating the evidence of a witness, the
approach must be whether the evidence of the witness
read as a whole appears to have a ring of truth. Once that
impression is formed, it is undoubtedly necessary for the
Court to scrutinize the evidence more particularly keeping
in view the deficiencies, drawbacks and infirmities pointed
out in the evidence as a whole and evaluate them to find
out whether it is against the general tenor of the evidence
given by the witness and whether the earlier evaluation
of the evidence is shaken as to render it unworthy of
belief.
II. If the Court before whom the witness gives evidence
had the opportunity to form the opinion about the general
tenor of evidence given by the witness, the appellate court
which had not this benefit will have to attach due
weight to the appreciation of evidence by the trial court
and unless there are reasons weighty and formidable it
would not be proper to reject the evidence on the ground of
minor variations or infirmities in the matter of trivial
details.
III. When eye-witness is examined at length it is quite
possible for him to make some discrepancies. But courts
should bear in mind that it is only when discrepancies in
the evidence of a witness are so incompatible with the
credibility of his version that the court is justified in
jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching the
core of the case, hyper technical approach by taking
sentences torn out of context here or there from the
evidence, attaching importance to some technical
error committed by the investigating officer not going to the
root of the matter would not ordinarily permit rejection of
the evidence as a whole.
// 14 //
V. Too serious a view to be adopted on mere variations
falling in the narration of an incident (either as between
the evidence of two witnesses or as between two
statements of the same witness) is an unrealistic
approach for judicial scrutiny.
VI. By and large a witness cannot be expected to possess
a photographic memory and to recall the details of an
incident. It is not as if a video tape is replayed on the
mental screen.
VII. Ordinarily it so happens that a witness is overtaken
by events. The witness could not have anticipated the
occurrence which so often has an element of surprise. The
mental faculties therefore cannot be expected to be attuned
to absorb the details.
VIII. The powers of observation differ from person to
person. What one may notice, another may not. An object
or movement might emboss its image on one person's mind
whereas it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a
conversation and reproduce the very words used by them
or heard by them. They can only recall the main purport of
the conversation. It is unrealistic to expect a witness to
be a human tape recorder.
X. In regard to exact time of an incident, or the time
duration of an
occurrence, usually, people make their estimates by guess
work on the spur of the moment at the time of
interrogation. And one cannot expect people to make very
precise or reliable estimates in such matters. Again,
it depends on the time-sense of individuals which varies
from person to person.
XI. Ordinarily a witness cannot be expected to recall
accurately the sequence of events which take place in
rapid succession or in a short time span. A witness is
liable to get confused, or mixed up when interrogated later
on.
XII. A witness, though wholly truthful, is liable to be
overawed by the court atmosphere and the piercing cross
examination by counsel and out of nervousness mix up
facts, get confused regarding sequence of events, or fill up
details from imagination on the spur of the moment. The
subconscious mind of the witness sometimes so operates
on account of the fear of looking foolish or being
disbelieved though the witness is giving a truthful and
honest account of the occurrence witnessed by him.
// 15 //
XIII. A former statement though seemingly inconsistent
with the evidence need not necessarily be sufficient to
amount to contradiction. Unless the former statement has
the potency to discredit the later statement, even if the
later statement is at variance with the former to some
extent it would not be helpful to contradict that witness."
[See Bharwada Bhoginbhai Hirjibhai v. State of
Gujarat, 1983 Cri LJ 1096 : (1983) 3 SCC 217 : AIR 1983
SC 753, Leela Ram v. State of Haryana, (1999) 9 SCC
525 : AIR 1999 SC 3717, and Tahsildar Singh v. State
of UP, AIR 1959 SC 1012]
Issue before us in the present Appeal, Analysis and
Conclusion
17. In our considered opinion in all probability, keeping in view
of the lack of disclosure of circumstances and the details of seizure
of the alleged weapon of offence : a knife; the learned trial court
has not delved into the aspect whether use of the alleged weapon of
offence and its recovery were proved or not. The learned trial court
has marked the statement of the I.O. P.W.9 that he recovered the
blood stained knife from a bush near an Anganwadi Centre,
though the details of the said Anganwadi Centre is not indicated in
the spot map. Learned trial court also has observed :
"So the chemical examiners report, neither establish that
the alleged knife had been used as weapon of offence nor
it establishes that the blood of the deceased was found in
the shirt of the accused. During the cross-examination,
P.W.9 admits that his investigation revealed that in 1999
there was a criminal case against the deceased for
assaulting the accused."
18. We accept the submissions of the learned State Counsel that
evidence of P.W.2, though has some minor contradictions, remains
unimpeached. In view of the law laid down by the Hon'ble
Supreme Court in Shahajan Ismail Mohd. Shaikh (supra) and
State v. Laly (supra) in absence of recovery of weapon the
appellant can be convicted on basis of testimony of P.W.2.
// 16 //
19. In our considered opinion the further question that falls for
our consideration is : whether the manner in which the entire
incident of assault on the deceased took place, would amount to
culpable homicide amounting to murder or culpable homicide not
amounting to murder.
In adverting to such question it would be apt to refer to the
decision rendered by the Hon'ble Supreme Court in Ajmal v. State
of Kerala, (2022) 9 SCC 766 wherein Hon'ble Supreme Court
have held in paragraph-17, page 775 of SCC, relying upon the
earlier decision rendered by the Hon'ble Supreme Court in Mohd.
Rafiq v. State of M.P., (2021) 10 SCC 706 : (2022) 1 SCC (Cri)
116. In Mohd. Rafiq (supra) the Hon'ble Supreme Court have relied
on the decisions in A.P. v. Rayavarapu Punnayya, (1976) 4 SCC
382 : 1976 SCC (Cri) 659; Pulicherla Nagaraju v. State of A.P.,
(2006) 11 SCC 444 : (2007) 1 SCC (Cri) 500, as quoted herein :
"17. The distinctive features and the considerations
relevant for determining a culpable homicide amounting to
murder and distinguishing it from the culpable homicide not
amounting to murder has been a matter of debate in large
number of cases. Instead of referring to several decisions on
the point reference is being made to a recent decision
in Mohd. Rafiq v. State of M.P. [Mohd. Rafiq v. State of M.P.,
(2021) 10 SCC 706 : (2022) 1 SCC (Cri) 116] , wherein
Ravindra Bhatt, J. speaking for the Bench, relied upon two
previous judgments [Ed. : The reference appears to be
to State of A.P. v. Rayavarapu Punnayya, (1976) 4 SCC 382
: 1976 SCC (Cri) 659; Pulicherla Nagaraju v. State of A.P.,
(2006) 11 SCC 444 : (2007) 1 SCC (Cri) 500] dealing with
the issue as narrated in paras 11, 12 and 13 of the Report
which are reproduced below : (SCC pp. 711-15)
"11. The question of whether in a given case, a
homicide is murder [Per S. Ravindra Bhat, J.--
"Sections 299 and 300IPC define the two offences.
They are extracted below:299. Culpable homicide.--
Whoever causes death by doing an act with the
intention of causing death, or with the intention of
// 17 //
causing such bodily injury as is likely to cause death,
or with the knowledge that he is likely by such act to
cause death, commits the offence of culpable
homicide.Illustrations(a) A lays sticks and turf over a
pit, with the intention of thereby causing death, or with
the knowledge that death is likely to be thereby
caused. Z believing the ground to be firm, treads on it,
falls in and is killed. A has committed the offence of
culpable homicide.(b) A knows Z to be behind a
bush. B does not know it A, intending to cause, or
knowing it to be likely to cause Z's death, induces B to
fire at the bush. B fires and kills Z. Here B may be
guilty of no offence; but A has committed the offence of
culpable homicide.(c) A, by shooting at a fowl with
intent to kill and steal it, kills B who is behind a
bush; A not knowing that he was there. Here,
although A was doing an unlawful act, he was not
guilty of culpable homicide, as he did not intend to
kill B, or to cause death by doing an act that he knew
was likely to cause death.Explanation 1.--A person
who causes bodily injury to another who is labouring
under a disorder, disease or bodily infirmity, and
thereby accelerates the death of that other, shall be
deemed to have caused his death.Explanation 2.--
Where death is caused by bodily injury, the person
who causes such bodily injury shall be deemed to have
caused the death, although by resorting to proper
remedies and skilful treatment the death might have
been prevented.Explanation 3.--The causing of the
death of child in the mother's womb is not homicide.
But it may amount to culpable homicide to cause the
death of a living child, if any part of that child has
been brought forth, though the child may not have
breathed or been completely born.300. Murder.--
Except in the cases hereinafter excepted, culpable
homicide is murder, if the act by which the death is
caused is done with the intention of causing death,
or--Secondly.--If it is done 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--Thirdly.--If it is done 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--
Fourthly.--If the person committing the act knows that
// 18 //
it 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 aforesaid.Illustrations***Exception 1.--
When culpable homicide is not murder.--Culpable
homicide is not murder if the offender, whilst deprived
of the power of self-control by grave and sudden
provocation, causes the death of the person who gave
the provocation or causes the death of any other
person by mistake or accident.The above exception is
subject to the following provisos:First.--That the
provocation is not sought or voluntarily provoked by
the offender as an excuse for killing or doing harm to
any person.Secondly.--That the provocation is not
given by anything done in obedience to the law, or by a
public servant in the lawful exercise of the powers of
such public servant. Thirdly.--That the provocation is
not given by anything done in the lawful exercise of the
right of private defence. Explanation.--Whether the
provocation was grave and sudden enough to prevent
the offence from amounting to murder is a question of
fact. Illustrations***Exception 2.--Culpable homicide
is not murder if the offender, in the exercise in good
faith of the right of private defence of person or
property, exceeds the power given to him by law and
causes the death of the person against whom he is
exercising such right of defence without premeditation,
and without any intention of doing more harm than is
necessary for the purpose of such
defence.IllustrationsZ attempts to horsewhip A, not in
such a manner as to cause grievous hurt to A. A draws
out a pistol. Z persists in the assault. A believing in
good faith that he can by no other means prevent
himself from being horsewhipped,
shoots Z dead. A has not committed murder, but only
culpable homicide. Exception 3.--Culpable homicide
is not murder if the offender, being a public servant or
aiding a public servant acting for the advancement of
public justice, exceeds the powers given to him by law,
and causes death by doing an act which he, in good
faith, believes to be lawful and necessary for the due
discharge of his duty as such public servant and
without ill-will towards the person whose death is
caused. Exception 4.--Culpable homicide is not
// 19 //
murder if it is committed without premeditation in a
sudden fight in the heat of passion upon a sudden
quarrel and without the offender having taken undue
advantage or acted in a cruel or unusual
manner.Explanation.--It is immaterial in such cases
which party offers the provocation or commits the first
assault.Exception 5.--Culpable homicide is not
murder when the person whose death is caused, being
above the age of eighteen years, suffers death or takes
the risk of death with his own consent. Illustration A,
by instigation, voluntarily causes, Z, a person under
eighteen years of age to commit suicide. Here, on
account of Z's youth, he was incapable of giving
consent to his own death; A has therefore abetted
murder."] , punishable under Section 302 IPC, or
culpable homicide, of either description, punishable
under Section 304 IPC has engaged the attention of
courts in this country for over one-and-a-half
century, since the enactment of IPC; a wealth of case
law, on this aspect exists, including perhaps several
hundred rulings by this Court. The use of the term
"likely" in several places in respect of culpable
homicide, highlights the element of uncertainty that
the act of the accused may or may not have killed the
person. Section 300 IPC which defines "murder",
however refrains from the use of the term likely,
which reveals absence of ambiguity left on behalf of
the accused. The accused is for sure that his act will
definitely cause death. It is often difficult to
distinguish between culpable homicide and murder as
both involve death. Yet, there is a subtle distinction of
intention and knowledge involved in both the crimes.
This difference lies in the degree of the act. There is a
very wide variance of degree of intention and
knowledge among both the crimes.
12. The decision in State of A.P. v. Rayavarapu
Punnayya [State of A.P. v. Rayavarapu Punnayya,
(1976) 4 SCC 382 : 1976 SCC (Cri) 659] notes the
important distinction between the two provisions, and
their differing, but subtle distinction. The Court
pertinently pointed out that : (SCC p. 386, paras 12-13)
'12. In the scheme of the Penal Code, "culpable
homicide" is genus and "murder" its specie. All
// 20 //
"murder" is "culpable homicide" but not 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 this generic offence, the Code
practically recognises 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 as "murder".
The second may be termed as "culpable homicide
of the second degree". This is punishable under the
first part of Section 304. Then, 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
punishments provided for the three grades.
Culpable homicide of this degree is punishable
under the second part of Section 304.
13. The academic distinction between "murder"
and "culpable homicide not amounting to murder"
has vexed the courts for more than a century. 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.'
[Underlined to Supply Emphasis]
13. The considerations that should weigh with courts, in
discerning whether an act is punishable as murder, or
culpable homicide, not amounting to murder, were outlined
in Pulicherla Nagaraju v. State of A.P. [Pulicherla
Nagaraju v. State of A.P., (2006) 11 SCC 444 : (2007) 1
SCC (Cri) 500] This Court observed that : (SCC pp. 457-58,
para 29)
'29. Therefore, the Court should proceed to decide the
pivotal question of intention, with care and caution, as
// 21 //
that will decide whether the case falls under Section
302 or 304 Part I or 304 Part II. Many petty or
insignificant matters -- plucking of a fruit, straying of
cattle, quarrel of children, utterance of a rude word or
even an objectionable glance, may lead to altercations
and group clashes culminating in deaths. Usual
motives like revenge, greed, jealousy or suspicion may
be totally absent in such cases. There may be no
intention. There may be no premeditation. In fact, there
may not even be criminality. At the other end of the
spectrum, there may be cases of murder where the
accused attempts to avoid the penalty for murder by
attempting to put forth a case that there was no
intention to cause death. It is for the courts to ensure
that the cases of murder punishable under Section
302, are not converted into offences punishable under
Section 304 Part I/II, or cases of culpable homicide not
amounting to murder are treated as murder punishable
under Section 302. The intention to cause death can be
gathered generally from a combination of a few or
several of the following, among other, circumstances :
(i) nature of the weapon used; (ii) whether the weapon
was carried by the accused or was picked up from the
spot; (iii) whether the blow is aimed at a vital part of
the body; (iv) the amount of force employed in causing
injury; (v) whether the act was in the course of sudden
quarrel or sudden fight or free for all fight; (vi) whether
the incident occurs by chance or whether there was
any premeditation; (vii) whether there was any prior
enmity or whether the deceased was a stranger; (viii)
whether there was any grave and sudden provocation,
and if so, the cause for such provocation; (ix) whether it
was in the heat of passion; (x) whether the person
inflicting the injury has taken undue advantage or has
acted in a cruel and unusual manner; (xi) whether the
accused dealt a single blow several blows. The above
list of circumstances is, of course, not exhaustive and
there may be several other special circumstances with
reference to individual cases which may throw light on
the question of intention."
[Underlined to Supply Emhpasis]
// 22 //
20. In Tarandas Satnami (In Jail) and another v. State of
Chhatisgarh; 2020 SCC OnLine SC 1323 in an appeal
challenging judgment/order passed by the High Court confirming
conviction of the appellant for offence under Section 302 of IPC,
Hon'ble Supreme Court held :
"6. We have gone through the evidence of the prosecution,
more particularly, the evidence of ocular testimony of the
witnesses. It is not in dispute that the deceased had eloped
with the wife of the Accused No. 2 - Sushil Kumar about 15
days prior to the incident. Both the accused, and the
deceased are from a remote village in Durg District of
Madhya Pradesh. They are rustic villagers. The evidence of
the eye-witnesses consistently and cogently discloses that
both the accused assaulted the deceased.
7. However, the only question to be decided in the matter on
hand is as to whether the offence falls under Section 304
Part I of the IPC or not. It is now well settled that the
doctrine of sudden and grave provocation is incapable of
rigid construction leading to or stating any principle of
universal application. While applying this principle, the
primary obligation of the court is to examine from the point
of view of a person of reasonable prudence whether there
was such grave and sudden provocation so as to
reasonably conclude that it was possible to commit the
offence of culpable homicide [See : Budhi Singh v. State of
Himachal Pradesh, (2012) 13 SCC 663 (para 18)].
8. In the matter on hand, in our considered opinion, the
Court will have to see as to how the accused were placed in
the society. As mentioned supra, they are illiterate, rustic
villagers. The wife of Accused No. 2 had eloped with the
deceased. Accused No.1 is none other than the uncle of
Accused No. 2. It is contended by the learned counsel for
the appellant, it would have been difficult for the accused to
survive in the village subsequent to the incident in question.
They must have been humiliated and insulted by the public
at large in the village. Learned counsel for the appellants
argued that the evidence must be evaluated against this
backdrop.
9. As mentioned supra, the deceased had gone for taking
bath, and after taking bath in a pond, he was going to go to
his house through a lane in which the house of the accused
is situated. Accused No. 2, who was cutting wood, saw the
deceased in front of his house and immediately thereafter,
// 23 //
he hit on the face of the deceased with the axe. Accused No.
1 also assaulted the deceased with a spade, consequent
upon which, the deceased lost his life. In our considered
opinion, there is no prior preparation to the incident in
question. The incident had occurred whilst the
deceasedwas deprived of the power of self-control
immediately after seeing the deceased. The accused were
suddenly and gravely provoked by seeing the deceased
near their house. Although the deceased had not committed
any overt act on the spot, the very presence of the deceased
in front of their house had made the accused to lose their
self-control, consequent upon which the incident had taken
place. Hence, in our considered opinion, the offence may fall
under exception (I) to Section 300 of the IPC. In view of the
same, the offence committed by the accused falls under
Section 304 Part I of the IPC, under the facts and
circumstances of the case."
[Emphasis Supplied]
Culpability of the accused-appellant
21. To apply the principles as enunciated in Ajmal (supra)
following Mohd. Rafiq (supra) and the principles laid down in
Tarandas (supra), the evidence presented before the learned trial
court by the prosecution is analyzed as indicated herein :
As per the FIR and evidence of P.W.2 there was no
premeditation on the part of the appellant-accused.
The nature of weapon used has not been proved before the
learned trial court in proper perspective inasmuch as recovery of
the knife and its further use, though was suggested to be the
weapon, was not proved by the prosecution.
The prosecution did not attempt to prove the link between
the accused and the use of suggested weapon of offence : a knife.
The medical opinion and forensic examination report does
not support prosecution case regarding use of knife.
// 24 //
As per the evidence adduced by the prosecution, the motives
like revenge, greed, jealousy or suspicion are absent in the present
case.
It cannot be inferred from the evidence relied on by the
prosecution accepted by the learned trial court that the appellant-
accused while inflicting the injury has taken undue advantage or
has acted in a cruel and unusual manner.
The appellant-accused appears to have lost self-control.
Both the accused and the deceased are rustic villagers
belonging to Scheduled Tribe category, inhabitants of
underdeveloped area.
Learned counsel for the State in his arguments has relied
upon the decision in State v. Laly (supra) wherein at paragrah-7
the Hon'ble Supreme Court held that conviction can be based on
evidence of eye-witness, in absence of recovery of weapon.
Apparently, the argument of the State is that though the
prosecution did not prove recovery and use of knife that is alleged
to be the weapon of offence, in view of the evidence of the P.W.2,
conviction is to be sustained.
In our considered opinion, for the reasons summarised
herein above, the appellant would be entitled for acquittal under
Section 302 IPC but would be liable to be convicted under Section
304 Part I of IPC.
Sentence
22. The appellant-accused was arrested on 22.7.2000,
forwarded to the learned court on 23.7.2000, was in jail custody till
pronouncement of the judgment by the learned Adhoc Addl.
Sessions Judge on 3.4.2003, sentencing the appellant to undergo
rigorous imprisonment for life and pay a sum of Rs.1,000/- as fine
and he was thus taken to custody and remained in custody until
// 25 //
bail was granted by this Court by order dated 29.6.2012 which
makes the total period of incarceration to be about eleven years
and eleven months.
In our considered opinion, the period of incarceration
already undergone by the appellant in prison shall be sufficient
sentence to be imposed on the appellant. The other stipulations in
the order of sentence passed by the learned sessions court as
regards the fine imposed and default sentence, are maintained.
Since the appellant was enlarged on bail by this Court earlier, the
bail bonds stand cancelled.
23. Accordingly, the appeal is allowed to the extent above by
modifying the conviction from Section 302 of I.P.C. to Section 304-I
of I.P.C. and the sentence is modified as indicated above. In the
facts and circumstances of the case, there shall be no order as to
costs.
........................
(M.S.Sahoo)
Judge
Biswanath Rath, J. I agree.
...........................
(Biswanath Rath)
Judge
Orissa High Court, Cuttack
The 2nd August,2023/dutta/Gs
Signature Not Verified
Digitally Signed
Signed by: AJIT KUMAR DUTTA
Reason: auc
Location: ohc
Date: 03-Aug-2023 11:44:54
