Sibananda Chhuria vs State Of Odisha
2023 Latest Caselaw 8064 Ori

                                                IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                       CRLA Nos.1 of 2012 & 149 of 2016

                                        (From the judgment of conviction and order of sentence dated
                                        07.12.2011 passed by the learned Sessions Judge, Bargarh in
                                        C.T. Case No.82 of 2009)

                                                         (In CRLA No.1 of 2012)
                                       Sibananda Chhuria                    ....             Appellant

                                                                 -versus-

                                       State of Odisha                        ....         Respondent



                                       Advocates appeared in the case:
                                       For Appellant             :            Mr. D.P. Dhal, Sr. Adv.

                                                                  -versus-

                                       For Respondent            :              Mr. S. K. Nayak, AGA



                                                       (In CRLA No.149 of 2016)
                                       Tian @ Atmaram Chhuria              ....              Appellant

                                                                 -versus-
                                       State of Odisha                        ....         Respondent



                                       Advocates appeared in the case:
                                       For Appellant             :           Ms. Gitanjali Majhi, Adv.

                                                                  -versus-

                                       For Respondent            :              Mr. S. K. Nayak, AGA

Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR                                                                    pg. 1
Designation: Assistant Registrar-cum-Senior Secretary
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 24-Jul-2023 18:08:40
                                                         CORAM:
                                                        MR. JUSTICE D. DASH
                                                        DR. JUSTICE S.K. PANIGRAHI

                                                         DATE OF HEARING:-04.07.2023
                                                        DATE OF JUDGMENT:-24.07.2023

                                            Dr. S.K. Panigrahi, J.

1. In this CRLA, both the convicts/Appellants challenge the

judgment of conviction and order of sentence 07.12.2011 passed

by the learned Sessions Judge, Bargarh in C.T. Case No.82 of

2009, whereby the Appellants were convicted and sentenced to

undergo imprisonment for life for commission of offence under

Section 302 of the Indian Penal Code, 1860 (hereinafter referred

to as "the I.P.C." for brevity").

I. CASE OF THE PROSECUTION:

2. Bereft of unnecessary details, the case of the prosecution, in

short, is that around 12.30 a.m. in the night in between

14/15.12.2008 one Gopalji Mahana of village Andhanpali

presented a written report at the spot in the village Andharipali

alleging therein that around 10pm on 14.12.2008 being woken

to the voice of the accused persons those were loudly shouting

at someone, he came out from his house and moved towards

Bedipada chowk to have a glimpse of the matter. At that time

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 2 Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 he noticed an electric bulb was glowing in the grocery shop of

Madhu Sahoo and a person was standing on the verandah of

the shop. At that time accused Tian alias Atmaram Chhuria

(Appellant No.2) came running shouting loudly and he was

armed with a sword. He was also accompanied by the

Appellant No.2. Seeing the persons those who were standing in

the verandah of Madhu Sahoo's shop. It is stated that the

appellant directed the other accused to assault him. All on a

sudden accused Tian alias Atmaram Chhutia struck the person

with a sword in the neck making him crash to the floor. The

said Gopalji Mahana was watching the scene standing on the

betel shop of Padmalochan. Everything was clearly visible by

means of the light emitting from the bulb in the verandah of

Madhu Sahu shop. At that time somebody shouted that Tian

alias Atmaram Chhuria has already killed Daitary. Hearing

this, he called out one Dayasagar and Dayanidhi to probe into

the same. Thus, with the help of Dayasagar and Dayanidhi the

residents of that locality shifted Daitary to VSS Medical College

in a van. Half an hour later, Dayasagar intimated over phone

that Daitary has succumbed to the injury.

3. On receipt of this information, one H.K.Sethi- P.W.14 the then

A.S.I. of Police attached to Attabira P.S. proceeded to the spot

along with J.S.I.-J.K.Mohanty. He entered this fact in the Station Signature Not Verified pg. 3 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 Diary vide Entry No.324 dated 14.12.2008 and on receipt of the

report he stated investigation of the case. On return to Attabira

P.S. P.W.14 registered P.S. Case No.214 under Section 302/34 of

the I.P.C. and in absence of the I.I.C. he took up investigation.

II. SUBMISSION OF THE APPELLANT IN CRLA NO.1 OF 2012:

4. Learned Counsel for the Appellant strenuously argued that the

Appellant is innocent. The plea of the defence is one of

complete denial and false implication. The specific case/plea of

the defence as it borne out from the statement of the accused

under Section 313 of the Cr.PC. is that he (accused) is in no way

connected or concerned with the death of the deceased. He had

further deposed that he cannot say who has killed the

deceased, however, he was not involved in the incident.

5. Learned Counsel has submitted that the trial Court should

have reached at a conclusion that the appellant is not at all

liable for the offence under section 302 of the Indian Penal

Code with the aid of Section 34 of the Indian Penal Code taking

into consideration the judicial pronouncement to the effect that

mere presence with the other accused at the place of occurrence

is not indicative of sharing of common intention with other

accused.

6. He has submitted that the trial Court should have taken into

consideration against the effective point to the effect that Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 4 Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 incriminating circumstances have not been asked to the

appellant during his examination under section 313 of the Code

of Criminal Procedure. In absence of any explanation by the

accused to a circumstance which has been put to him cannot be

taken note of or utilized against him to reach at a conclusion

that he is liable along with the main accused in aid of Section 34

of the Indian Penal Code.

7. Learned Counsel further contended that if at all, the accused

should be charged under culpable homicide not amounting to

murder. He submitted that P.Ws have stated in their respective

deposition that there was quarrel between the accused and the

deceased on the spot and both had consumed liquor. Therefore,

the attack on the deceased by the accused was not

premeditated, rather, it was sudden and in the heat of the

moment.

III. SUBMISSIONS OF APPELLANT IN CRLA NO.149 OF 2016:

8. Learned Counsel for the Appellant has submitted that the

learned Trial court should have taken into consideration

against the effective point to the effect that incriminating

circumstances have not been asked to the appellant during his

examination under Section 313 of the Code of Criminal

Procedure. In absence of any explanation by the accused to a

circumstance which has been put to him cannot be taken note

Signature Not Verified pg. 5 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 of or utilized against him to reach at a conclusion that both

have committed murder of the deceased.

9. Learned Counsel for the Appellant No.2 submitted that the

trial court should have taken note of the fact that there are

contradiction among the evidence of eye witnesses as well as

among the post occurrence witnesses and also the evidence of

doctor.

10.Learned Counsel for the Appellant has submitted that even if

at all the version of eye witness completely accepted, and then

also it is not coming from the allegation that the accused

persons have any intention to kill the deceased. The genesis of

crime is shown the accused had a tussle with Jubraj Sahu /

Sribatsa Sahu, how the present deceased has been victimized

by the accused, it is not coming from any one of the

prosecution witness, and in such a doubtful situation learned

trial court held that the murder of the deceased has been

committed by the present appellant in completely illegal

appreciation of the facts and law and as such liable to be set

aside.

11.Learned Counsel for the Appellant has submitted that the

prosecution has miserable failed to establish its case beyond all

reasonable doubt, but learned trial court has instead of

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 6 Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 discarding the same, relied upon such unreliable evidence and

made it the ground of convicting.

IV. SUBMISSIONS OF THE STATE/ RESPONDENT:

12. Learned Counsel for the State submitted that both the accused

have common intention to commit the murder for which they

returned to the same place bringing out a sword with which

the deceased was murdered. At the end of the first phase of the

occurrence they were resolved to see the deceased and other

opponents on their return after a while. In fact they returned

with the fateful sword and caused death of the deceased by

striking him.

13. He has further submitted that the evidence of eye witnesses is

very consistent. Number of eye-witnesses have depicted the

entire occurrence from the beginning till the end. Minor

discrepancies here and there or contradictions with their earlier

statement to police not very much material should not be

banked upon to draw negative inferences. The injuries, the

death and the assault have been flawlessly established.

Principle of common intention is very much applicable to

accused Sibananda for which he is also liable for commission of

the alleged crimes. In addition to liability of both accused

persons for the offence committing murder of the deceased

Daitari Mahana punishable under Section 302/34 of the I.P.C

Signature Not Verified pg. 7 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 They are also liable for voluntarily causing simple hurt to

Dayasagar Mahana punishable under Section 323/34 of the

I.P.C.

14. Learned Counsel for the State submitted that from the

unassailed testimony of the eye witnesses i.e. P.Ws which finds

ample corroboration with each other coupled with the medical

evidence i.e. the evidence of the doctor, it can be safely

concluded that, none else but the accused is the author of the

injuries found on the body of the deceased.

V. COURT'S REASONING AND ANALYSIS:

15. Heard both the parties and went through the judgment of the

Trial Court. After extensively perusing the documents adduced

by the prosecution and the depositions of the witnesses, this

Court is of the view that there are two points of determination

in the present case:

i. Whether the death of the deceased is homicidal in nature?

ii. Whether the prosecution has managed to prove beyond

reasonable doubt that the act of the appellants with common

intention led to the death of the deceased?

iii. Whether the act of the appellant was premeditated and with

an intention to cause the death of the deceased?

Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR                                                                 pg. 8

Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 VI. Whether the death of the deceased is homicidal in nature?

16. P.W.8 (Medical Officer) has conducted Post Mortem of the

deceased as well as gave his opinion on the linking of the

external injuries found on the dead body with the weapon of

assault. There was a 'chop wound' on the left side between the

face and neck measuring 18 cms, depth of the injury was 5 cms.

Besides there was abrasion. All the injuries were antemortem in

nature. The chop wound is homicidal in nature which

according to the opinion of P.W.8 might have been caused by a

sharp cutting weapon with moderate to heavy impact.

17. Death is due to shock and haemorrhage resulting from the cut

injuries to the blood vessels of neck. Ext.9 is the Post Mortem

report. Regarding opinion of P.W.8 on the weapon of offence

basing upon a subsequent police requisition dated 09.01.2009,

the injuries described as chop wound as per the Post Mortem

Report is possible by the seized weapon of offence. Ext.10 is the

opinion of P.W.8 and the weapon of offence. The said weapon

of offence was identified by P.W.8 in the court which has been

earlier marked M.O.IV to IX. According to P.W.8 during his re-

examination M.OIV is the weapon of offence which he has

examined on police requisition and gave opinion as per Ext.10.

Therefore, there is no doubt that the death of the deceased was

Signature Not Verified pg. 9 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 homicidal in nature doctor was not examined by the

prosecution.

VII. Whether the prosecution has managed to prove beyond reasonable doubt that the act of the appellant led to the death of the deceased?

18.The case of the prosecution is primarily based on the

depositions of the eye witnesses P.W. 4, 5, 9, 11 and 12 and

other post occurrence witnesses.

19.P.W.14 (I.O.) seized some incriminating items like the wearing

apparel of the deceased on production by the escort party vide

Ext.7. The wearing apparel of Dayasagar Mahana were seized

who was in the midst of the scuffle leading to the fatal assault

and he who resisted a second blow attempt by means of deadly

sword and transacted injuries in the process. Ext.2 is the

seizure list in respect of his wearing apparel. He also seized the

wearing apparel of accused Tian @ Atmaram Chhuria vide

Ext.16 suspectedly bearing blood stain. While he arrested Tian

@ Atmaram Chhuria the other accused Sibananda Chhuria

surrendered in Court. With this back- ground and at this

juncture it is apt to turn to the evidence of witnesses who were

right in the middle and who reached after the furious and fatal

blow and also those who have somehow or other been

involved.

Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR                                                                  pg. 10

Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40

20.P.W.5 (Dayasagar Mahana) is the eye witness whose evidence

on this first phase of the occurrence which is attributive to the

intention of the accused persons is worth referring to at this

moment. He stated that he went out of the house in search of

his deceased brother and while returning to the house he saw

both the accused persons alongwith Balaram Bhoi heading

towards Bedi chowk passing in front of their house. Just in

front of the house of Jubaraj Sahu they started to hurl abuses

naming both Jubaraj and Sribatsa Sahu. At this time P.W.5 was

standing in the verandah of his house and from there he could

notice Umakanta son of Jubaraj Sahu and Sanjaya Sahu. The

son of Jubaraj's brother came out of their house and requested

the accused persons to refrain from abusing their elders but the

accused persons did not withdraw from abusing them which

finally led to a brawl. Later, he could see Umakanta and

Sanjaya returning back and while he was waiting for the

deceased to come back he started proceeding ahead near the

shop of Madhu. He saw both the accused persons coming

towards Bedi chowk, Tian @ Atmaram armed with a sword

uttering filthy references. Daitari was standing in the verandha

of Madhu's shop and seeing him accused Sibananda exhorted

by snarling at Tian instead of assaulting what the hell he was

watching and then came the fatal blow. When P.W.5 resisted a

Signature Not Verified pg. 11 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 second blow by show of his left hand he also sustained a cut

injury on his left palm. At this time Santanu reached there and

while both P.W.5 and Santanu were attempting to snatch out

the sword, Tian sustained injury on his right palm. Accused

Tian also sustained injury.

21.P.W.5 is an eye witness right from beginning so far as the first

phase of the occurrence is concerned. He has seen the

preceding action of the accused persons abusing Jubaraj and

Sribatsa Sahu stressing on continuation liquor trade in the

village. Both P.W.4 and P.W.5 have depicted immaculate ocular

account of the alleged incident right from the beginning till the

end. Both have stated after the first blow by sword Daitari fell

down bleeding profusely, the second blow was resisted

causing injury to the left palm of P.W.5. His condition was

extremely critical for which he was immediately shifted to

Burla.

22.P.W.11 is Purna Chandra Mahana. He is also an eye witness.

Firstly he saw the accused persons loudly abusing Jubaraj Sahu

and Sribatsa Sahu in filthy language while Balaram Bhoi was

beseeching them not to use such unparliamentary language in

public. Both of them were banging Jibaraj and Sribatsa against

abolition of Bhati trade of liquor from their village. At this time

Umakanta and Sanjaya intervened and as the accused persons

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 12 Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 did not abide by them both of them pushed them towards the

shop of Madhu Sahu. 5 to 10 minutes later both came back

from the direction of their house Tian armed with a sword

while Sibananda followed him. Sibananda seeing Daitari

commanded Tian and accordingly Tian dealt the fatal blow.

Similar version has been deposed by most other witnesses

including the informant himself i.e. P.W.9 (Gopalji Mahana).

He had narrated the entire scene of assault which led to the

death of his brother Daitari Mahana. The sword blow by Tian

on the exhortation of other accused Sibananda sent the

deceased gasping finally to the end of his life. Samir Sahu

(P.W.6), Umakanta (P.W.10) who had retired back home just

before the fatal assault arrived the scene while the deceased

was Struggling near the shop of Madhu profusely bleeding

with cut injury on the left side of his neck. Santanu Mahana, the

son of the informant Gopalji Mahana is another eye-witness

who has narrated all the naked details of the way both the

accused put an end to the life of Daitari Mahana. The evidence

of these witnesses besides being quantitative is very much

consistent and, therefore, will not lack in quality.

23.P.W.4 has deposed that before the assault he alongwith Purna

Chandra Mahana (P.W.11) while proceeding towards the

grocery shop of Madhu Sahu had the occasion to get brushed

Signature Not Verified pg. 13 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 across with heated flurry of words in angry mood between the

accused persons on one side, and Umakanta Sahu, Sanjya Sahu

on the other. The accused persons were boiling with wrath for

both Umakanta and Sanjaya Sahu alongwith Balaram were

asking them to refrain from their conduct. The accused persons

at that time were declaring their challenge to see how Jubaraj

Sahu father of Umakanta and his brother Sribatsa will be able

to stop trading of liquor in their village. Umakanta, Sanjaya

and Balaram in their attempt to dissuade the accused persons

from their challenging mood managed to escort them back till

the grocery shop of Madhu Sahu. The accused persons got

furious on their intervention and it is accused Sibananda who

threatened Umakanta and Sanjaya saying that both will see

them on their return after a while. This has probably sparked

the deceased Daitari to action for which he also asked the

accused persons not to abuse Sanjaya and Umakanta but the

accused persons ran away towards their 'pada' to execute their

threat that they will see all of them.

24.P.W.11 Purna Chandra Mahana) and P.W.12 Santanu Mahana)

are the eye witnesses including P.W.4 (Pramod Kumar

Mahana), P.W.5 (Dayasagar Mahana), P.W.9( Gopalji Mahana)

have eye witnessed the alleged assault though carried out by

accused Atmaram on the direction of Co-accused Sibananda.

Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR                                                              pg. 14

Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 All of them have categorically stated about the exhortation by

accused Sivananda who ordered the other accused for giving

the sword blow which is thus a clear manifestation of his

intention common with other accused by whom the deceased

was assailed. There may be minor contradictions in the

evidence of so many eye witnesses including other post

occurrence witnesses. But these contradictions can hardly

shake the substratum of the prosecution case. Accused

Sivananda can be attributed common intention with that of the

actual assailant to cause the murder of the deceased.

25.P.W.2 (Mithun Mahana) is the proverbial post-occurrence

witness who reached the spot soon after the fatal blow being

attracted to a sudden scream of voices. The deceased was

already taken to the hospital. However, it came to his notice

there that the deceased has been injured being assaulted by

accused duo by means of sword. He is a witness to the seizure

vide Ext.3 of a pair of chappal belonging to the deceased which

was lying scattered around the spot. He identified the seized

chapal being exhibited the same in the Court vide M.O.III. He

stated that just thereafter Santanu Mahana, (P.W.12) son of the

elder brother of the deceased produced a sword divulging that

the accused persons assaulted the deceased using the same. He

Signature Not Verified pg. 15 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 could find blood stain on the sword which was seized by police

vide Ext.4.

26.P.W.3 is one Suresh Sahu. He is a witness to the seizure of the

chapals of both the accused persons including the sword of

accused Tian @ Atamram Chhuria. He is also a witness to the

seizure of wearing apparel of the deceased vide Ext.7/2, his

signature. He identified the wearing apparel of the deceased

during his examination in the court which has been marked

M.O.V to IX. Now P.W.4 (Pramod Kumar Mahana) is an eye

witness directly to the occurrence.

27.The principle underlying Section 34, I.P.C is that if two or more

persons intentionally do a thing jointly it is just the same as if

each of them had done it individually. In the present case the

deceased was standing on the verandah in the grocery shop

when the accused persons rolled back equipped with sword to

execute the ultimatum given by them minutes before that they

would see whoever comes, their way. Thus Sibananda howled

on Tian what he was watching and ordered him to charge

Daitari. The fatal sword blow landed on Daitari who sustained

a cut injury extending from his neck below the ear towards the

cheek, Daitari crashed down in the impact of the dreadful

blow. So in this case basing on the evidence on record

regarding both the phases through which the alleged murder

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 16 Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 took place, 'Common intention' is safely attributable to the

exhorting accused Sivananda Chhuria.

VIII. Whether the act of the appellant was premeditated and with an intention to cause the death of the deceased?

28. With regards to the second issue, the prosecution witnesses i.e.

P.Ws 4, 5, 9, 11 and 12 have not been able to provide whether

there was any kind of existing quarrel between the two parties.

In addition to this, the prosecution has not established that the

act of the accused shall not fall under the Exception 4 of Section

300 of IPC. The exception provides that that culpable homicide

is not 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.

29. In this regard, it has been well established by law that culpable

homicide becomes murder if the case comes under any one of

the clauses out of the four defined in section 300 of the I.P.C.

and the same becomes punishable under Section 302 of the

I.P.C. But the culpable homicide is not murder if the case falls

within any one of the exceptions out of five of the said section

300 of the I.P.C. and then the same becomes culpable homicide

not amounting to murder and punishable under Section 304 of

the I.P.C., but not under Section 302 of the I.P.C.

Signature Not Verified                                                                         pg. 17
Digitally Signed
Signed by: BHABAGRAHI JHANKAR

Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40

30. However, if an injury is inflicted with the knowledge and

intention that it is likely to cause death, but with no intention to

cause death the offence would fall within the definition of

Section 304-I IPC and not under Section 302 IPC. In this regard,

the Supreme Court in Virsa Singh v. State of Punjab1 as also in

Shankar Narayan Bhadolkar v. State of Maharashtra2, opined

as under:

"Applying the principles of law, as noticed hereinafter, I am of the considered opinion, that the offence committed by the appellants does not fall within the definition of Section 300 of the IPC, nor does it fall within the definition of offence, punishable under Section 304II of the Indian Penal Code. In my considered opinion, the learned trial Court rightly held that the nature of the offence, falls within the definition of Section 304-I of the IPC Section 304 deals with situations, where culpable homicide does not amount to murder, i.e. does not fall within the definition of murder, as contained in Section 300 of the IPC. Section 304 is sub-

divided into two parts. If an injury is inflicted with the knowledge and intention that it is likely to cause death, but with no intention to cause death the offence would fall within the definition of Section 304-I, however, if there is no intention to cause such an injury, but there is knowledge that such an injury can cause death, the offence would fall within the

AIR 1958 SC 465

(2005) (9) SCC 71 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 18 Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 definition of Section 304-II. Thus, is intention. If intention to cause such an injury as is likely to cause death, is established, the offence would fall under Part-I but where no such intention is established and only knowledge that the injury is likely to cause death, it would fall under Part-II."

"However, the nature of the injury, the weapon of offence, the intention and knowledge of the assailants, in my considered opinion, clearly places the offence as one under Section 304-I of the IPC. Appellant No.1 inflicted the injury with knowledge and intention that the injury, if inflicted is likely to cause death, but with no intention to cause death. However, as from the facts and circumstances of the present case, and the fact that it was a sudden fight, a single blow inflicted with the reverse side of a Kassi, it cannot be stated that he had an intention to cause death, as required to make out an offence under Section 300 of the IPC."

31. Reliance has also been placed on the decision of the Supreme

Court in the case of State of Punjab v. Tejinder Singh & Anr.3

In this case, two persons inflicted Gandasa blows on the

deceased. The altercation had already taken place four days

prior to the incident over the boundary line of the plots of the

parties. The accused persons came heavily armed shouting that

the deceased should not be spared at a point of time when his

AIR 1995 SC 2466 Signature Not Verified pg. 19 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 wife had brought breakfast for him and he had gone to hand

pump to bring water in a pitcher. It was even in the

aforementioned situation, this Court held:

"In view of our above findings we have now to ascertain whether for their such acts A-1 and A- 2 are liable to be convicted under Section 302 read with Section 34, IPC. It appears from the evidence of PW-4 and PW-5 that the deceased was assaulted both with the sharp edge and blunt edge of the gandasas and the nature of injuries also so indicates. If really the appellants had intended to commit murder, they would not have certainly used the blunt edge when the task could have been expedited and assured with the sharp edge. Then again we find that except one injury on the head, all other injuries were on non-vital parts of the body. Post-mortem report further shows that even the injury on the head was only muscle deep. Taking these facts into consideration we are of the opinion that the offence committed by the appellant is one under Section 304 (Part I), IPC and not under Section 302, IPC."

32. In the present case, it has been clearly established by the

prosecution that both the accused inflicted serious injury on the

deceased. This has been established owing to the deposition of

the eye-witnesses P.W.4, 5, 9, 11 and 12; due corroboration of

the medical report submitted by the medical officer (P.W.8).

The prosecution has further established that the injury was

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 20 Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 inflicted upon the deceased with the knowledge and intention

that it is likely to cause death. However, he has not been able to

prove whether the attack was premeditated and with an

intention to cause death. Therefore, even if the injury inflicted

was a serious one, it by itself may not be decisive but is one of

the relevant factors in regards to the application of fourthly of

Section 300. Application of the said provisions must be made

keeping in mind the fact situation obtaining and the legal

principles noticed hereinbefore.

33.For the reasons aforementioned, we are of the opinion that the

both the Appellants are guilty of commission of the offence

under Section 304 Part-I and not under Section 302 IPC thereof.

34. Therefore, we allow the appeal in part. Accordingly, the

conviction and sentence to undergo imprisonment for life and

to pay a fine of Rs.5,000/- in default to undergo R.I. for a further

period of one year for commission of offence under Section 302

of the I.P.C. recorded by the learned Sessions Judge, Bargarh in

C.T. Case No.82 of 2009, as per the judgment of conviction and

order of sentence dated 07.12.2011 are hereby set aside. Instead,

both the Appellants are convicted for the offence under Section

304, Part-I of the I.P.C. and sentenced to undergo R.I. for the

period already undergone. The period of detention already

undergone by both the Appellants during investigation, the

Signature Not Verified pg. 21 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 trial as an U.T.P. and during the pendency of the appeal is set

off under Section 428 of the Cr.P.C.

35. Both the Appellants- Sibananda Chhuria and Tian @ Atmaram

Chhuria be set at liberty forthwith in the aforesaid case, unless

their detention is not required in any other case.

36.Accordingly, both the Appeals are allowed in part.

( Dr. S.K. Panigrahi ) Judge

D. Dash, J. I agree.

( D. Dash ) Judge

Orissa High Court, Cuttack, Dated the 24th July, 2023/

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 22 Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40