Orissa High Court

Subash Khadia vs State Of Odisha on 27 March, 2023

            IN THE HIGH COURT OF ORISSA AT CUTTACK
                         CRLA No. 456 of 2017
    From judgment dated 30.04.2012 passed in S.T. Case No. 77/88
    of 2010 (arising out of G.R. Case No. 995/2010 of learned
    S.D.J.M., Jharsuguda).
                                ---------------
      Subash Khadia                 ......                    Appellant

                                 -Versus-

      State of Odisha               .......                Respondent

      Advocate(s) appeared in this case :-
      _______________________________________________________

        For Appellant       :       M/s. R.K. Das,
                                         S.K. Samantara,
                                         G.N. Parida,
                                         Advocates

         For Respondent :       Mr. S.S. Kanungo,
                                Addl. Government Advocate
      _______________________________________________________
           CORAM:
            MR. JUSTICE D. DASH
            MR. JUSTICE SASHIKANTA MISHRA

                  DATE OF HEARING:-09.03.2023
                 DATE OF JUDGMENT:-27.03.2023

SASHIKANTA MISHRA, J.

The appellant questions the correctness of the

judgment of conviction and sentence passed by the Ad-

hoc Additional District and Sessions Judge (FTC),

Jharsuguda in S.T. Case No.77/88 of 2010 whereby,

being convicted for the offence under Section 302 of I.P.C.,

he was sentenced to undergo imprisonment for life and to

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

for four months.

2. The prosecution case, sans unnecessary details

is as follows:-

One Rupabati Sahoo (informant) lodged F.I.R.

before Banharpalli Police Station in the district of

Jharsuguda on 10.07.2010 stating therein that on that

day in between 7.00 p.m. to 8.00 p.m. while her husband

(deceased) was sitting on the outer courtyard of their

house, the accused-appellant uprooted a banyan tree

planted earlier by the deceased due to which there was an

altercation between them as the deceased rebuked the

accused for such act. The accused being enraged went

inside his house and came back holding an axe with

which he dealt a blow on the neck of the deceased causing

him to fall down in a pool of blood. Though the informant

and her son-in-law Chagala Sahu tried to restrain the

accused in committing the act, they could not. The

accused left the spot after abusing the informant.

Thereafter, the informant and her son-in-law called the

neighbours who rushed to the spot and also saw the

accused standing on the road holding the axe. The

deceased was shifted to the hospital but was declared

dead by the Doctor.

The above complaint was registered as

Banharpalli P.S. Case No.16(3) dated 10.07.2010 under

Section 302 of I.P.C. which was followed by investigation.

Upon completion of investigation, charge sheet was

submitted against the accused also under Section 302 of

I.P.C.

3. The accused took the plea of denial.

4. To prove its case, prosecution examined eleven

witnesses of whom, P.W.1 is the informant and eyewitness

to the occurrence. P.W. 2 is the son of the informant and

the deceased. P.W.3 is the daughter-in-law of the

deceased who is a post-occurrence witness. P.W.4 is also

the daughter-in-law of the deceased and a post occurrence

witness. P.W. 5 is a seizure witness. P.Ws. 6 and 7 are

witnesses to the recovery of the weapon of offence. P.W.8

is another son of the deceased. P.W.9 is the autopsy

surgeon. P.W.10 is another doctor who had examined the

biological samples. P.W. 11 is the IO. Besides, prosecution

exhibited sixteen documents and proved five materials

objects.

5. Be it noted that charge was framed by the trial

court under Sections 302 of IPC and 427 of IPC as it was

alleged that apart from killing the deceased, the accused

had also damaged the plastic chair by axe blows on which

the deceased was sitting.

6. Defence did not adduce any evidence, either

oral or documentary.

Upon appreciation of the evidence on record,

the trial court first held that the evidence clearly reveals

that the death of the deceased was homicidal in nature.

As regards authorship of the crime, the trial court, after

analyzing the evidence of P.Ws. 1, 2, 3 and 4 coupled with

the evidence of the official witnesses held that the

dominant intention of the accused to commit the murder

of the deceased had developed after he was rebuked by

the deceased for uprooting the small banyan tree planted

by him and therefore, it was held that he had intention

the cause death of the deceased. As such, the trial court

held the prosecution to have successfully established the

case under Section 302 of I.P.C. and convicted him

thereunder. However, the trial court found no evidence to

prove the charge under Section 427 of IPC. Further,

considering the nature of the occurrence, the trial court

sentenced the convict to imprisonment for life with fine of

Rs.5,000/-, in default to undergo for R.I. for four months.

7. Heard Mr. R.K. Das, learned counsel for the

convict-appellant and Mr.S.S. Kanungo, learned

Additional Government Advocate for the State.

8. Mr. Das submits that though several grounds

to challenge the impugned judgment had been taken in

the memorandum of appeal, yet the appellant would like

to confine his challenge only to the finding of the trial

court regarding guilt of the accused under Section 302 of

I.P.C. as also the sentence imposed thereunder. In this

regard, Mr. Das would argue that even accepting the

prosecution evidence as it is, no case of murder within the

meaning of Section 300 of I.P.C. is made out inasmuch as

the evidence only shows that the incident in question had

occurred out of a sudden quarrel without any

premeditation on the part of the appellant to cause the

death of the deceased. According to Mr. Das therefore, this

is a case covered under the Exception-4 of Section 300 of

IPC. On such ground Mr. Das also argues that the

sentence of imprisonment for life cannot be sustained.

9. Per contra, Mr. Kanungo has supported the

reasoning adopted by the trial court and submits that it is

borne out from the evidence on record that the accused

had an altercation with the deceased and thereafter went

to his house specifically to bring the weapon of offence

(axe) with which he assaulted the deceased. According to

him, it is a clear case of acting with premeditation and

therefore, the finding of the trial court in this regard does

not warrant any interference.

10. Since the order of conviction as such is not

challenged but the appellant's grievance is only with

regard to the offence for which he has been convicted, it

would suffice to refer to the evidence to such extent only.

In this regard, it is in the evidence of the sole eyewitness

P.W.1 (informant) that the accused uprooted a small

banyan tree planted by the deceased for which the latter

rebuked him and then the accused went to his house

situated nearby and came to the spot with an axe with

which he dealt a blow on the left side of the neck of the

deceased who fell down in a pool of blood. The accused left

the spot thereafter brandishing the axe and threatening

other persons from coming near him. In cross-

examination, P.W. 1 stated that she had heard the

altercation between the accused and the deceased and

that when the accused uprooted the banyan tree, the

deceased rebuked him saying "Sala Magiha" etc, for which

the accused became enraged. According to P.W.1, the

assault was also witnessed by her son-in-law Chagala

Sahu. The said Chagala Sahu was examined as P.W.4 and

stated that at the relevant time, he was present in the

house of the deceased and on hearing the cry of the

deceased, he rushed near him and saw that there was

profound bleeding from his left side neck and the accused

was going away with an axe. Further, the accused had

also shown his axe to him and P.W.1 in a threatening

manner. P.Ws. 2 and 3 are post occurrence witnesses.

From a conjoint reading of the versions of the P.Ws. 1 and

4, it is apparent that the assault was preceded by an

altercation between the accused and the deceased. While

prosecution wants the court to believe that such

altercation was related to the uprooting of the banyan tree

by the accused yet, if the following statement of P.W.1 in

cross-examination is considered, it presents a slightly

different story.

"xxx xxx xxx At the time of occurrence the deceased was sitting in the open court-yard having cement floors. After my husband took a chair from our house and sat on the same in the court- yard I came there about five minutes thereafter. I had heard the altercation between the accused and the deceased. When the accused uprooted our banyan tree, the deceased rebuked him saying "Sala Maghia etc for which the accused became enraged. I was standing near the deceased when the accused subsequently came with an axe and dealt a blow on his neck xxx xxx xxx"

(Emphasis supplied)

11. The above statements clearly suggest that the

altercation was due to some other reason followed by

uprooting of the tree by the accused. At this juncture, the

deceased abused the accused using obscene words due to

which the latter became enraged. This is thus, a case

where there was verbal quarrel, for whatever reason,

between the accused and the deceased in course of which,

the accused uprooted the banyan tree. When the deceased

abused him for such act he became enraged and went to

his house and came back holding the axe with which he

dealt a blow on the neck of the deceased. Two things are

apparent, one, there was some quarrel and altercation

which led the accused to uproot the banyan tree and

second, the same prompted the deceased to abuse him

using obscene words hearing which he became enraged.

Till such time, there was no attempt by the accused to

assault the deceased even though the altercation was

going on for some time. But when the deceased abused

him using obscene language he became enraged and left

for his home and came with the axe to assault the

deceased. Thus, the abuse by the deceased using obscene

words appears to have triggered and provoked the accused

in assaulting the deceased. The accused went home and

brought the axe. According to the trial court, this shows a

premeditated intent to kill the deceased. But, in view of

the sequence of events directed hereinbefore, it is difficult

to accept such view. Rather, it would be plausible to hold

that being provoked by the abuse of the deceased, the

accused decided to assault him for which he went to bring

the axe. The time gap between the abuse and the assault

is too small to allow a person to take a calculated decision

of doing away with the life of another person. On the

contrary, it can be safely concluded that because of the

abuse by the deceased which was preceded by a verbal

altercation between them, the deceased lost the power of

self control at that time and committed the act. According

to our considered view the case would be squarely covered

under Exception-1 to 300, which reads as follows:-

"Exception1.-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 power of such public servant.

Thirdly.-That the provocation is not given by anything done in the lawful exercise of the right of private defence."

12. It must also be kept in mind that if the accused

had the intention of causing the death of the deceased

then he would have made an attempt at the initial stage

itself without getting into any altercation. In the

celebrated case of K.M. Nanavati vs. State of

Maharashtra, reported in AIR 1962 SC 605, the Apex

Court held as follows:-

" (1) The test of "grave and sudden"

provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to Section 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation."

Thus, we have no hesitation in holding that the

act committed by the accused, though culpable homicide,

would not amount to murder being covered by Exception-

1 to Section 300 of I.P.C.. Therefore, the conviction under

Section 302 of IPC is liable to be interfered with.

13. It is borne out from the evidence on record that

the deceased dealt one blow on the left side neck of the

deceased causing grievous injuries which ultimately led to

his death. But, use of the axe as the weapon of offence

and the site on which the blow much inflicted, i.e. neck of

the deceased which is a vital part of the body, suggests

that the accused had done so with the intention of