Khirod Dehury vs State Of Odisha
2025 Latest Caselaw 3530 Ori

Orissa High Court

Khirod Dehury vs State Of Odisha on 3 February, 2025

Author: Chittaranjan Dash

Bench: S.K. Sahoo, Chittaranjan Dash

      IN THE HIGH COURT OF ORISSA AT CUTTACK
                        JCRLA No. 11 of 2010
  (Arising out of the Judgment and Order of conviction dated 10th of
  February, 2010 passed by Shrimati P. Mohanty, Addl. Sessions
  Judge, F.T.C., Dhenkanal in Criminal Trial (Sessions) No.
  81/2009 / 18/2009, for the offence under section 302/324 of the
  Indian Penal Code, 1860)



  Khirod Dehury                  ....                       Appellant
                                           Ms. Susama Rani Sahoo,
                                                        Advocate
                               -versus-

  State of Odisha                ....                     Respondent
                                                Mr. Sarat Pradhan,
                                            Addl. Standing Counsel

                             CORAM:
        THE HON'BLE MR. JUSTICE S.K. SAHOO
  THE HON'BLE MR. JUSTICE CHITTARANJAN DASH

                    Date of Judgment: 03.02.2025

Chittaranjan Dash, J.

1. The Appellant, namely, Khirod Dehury, in the present JCRLA, has challenged the Judgment and Order dated 10.02.2010 of the Addl. Sessions Judge, F.T.C., Dhenkanal, wherein, he having found guilty of the offence under Sections 302/324 Indian Penal Code (hereinafter, in short, called "IPC"), sentenced to undergo imprisonment for life and to pay a fine of ₹5000/- (Rupees fifty thousand), and in default, to undergo rigorous imprisonment for six months for the offence u/s 302 IPC, and, sentenced to undergo rigorous imprisonment for 1 (one) year and to pay a fine of ₹1000/-,

for the offence u/s 324 IPC, with both the sentences to run concurrently.

2. The prosecution case, in brief, is that the informant, Sulabha Pradhan (P.W.1), the brother of the deceased Madhab Pradhan (hereinafter referred to as "the deceased"), was informed about an assault on Madhab near the house of Sanatan Behera (P.W.3) in village Sorisiapada on 27.02.2009, around 6 p.m. Upon rushing to the spot along with another brother (P.W.2), they found the deceased lying unconscious and bleeding from severe head injuries. They were informed by the bystanders that the deceased had been attacked by the Appellant, who used a wooden plank to deliver multiple successive blows to the deceased, causing him to fall from his bicycle. It was further conveyed that when P.W.3 tried to intervene, the Appellant turned on him, assaulting him with the same wooden plank and biting him. P.Ws. 1 and 2 immediately shifted the deceased to the Headquarters Hospital in Dhenkanal. Despite their efforts, the deceased succumbed to his injuries at the hospital. Later that night, P.W.1 reported the incident to Gondia Police Station. Based on the written report of P.W.1, the Informant, the S.I. (P.W.8) registered the Gondia P.S. Case No. 20 of 2009 vide Ext.1/3, under Sections 302 and 324 IPC against the Appellant and took up the investigation.

3. In the course of the investigation, the I.O. (P.W.8) examined the Informant, visited the spot at village Sorisiapada, and prepared the spot map. He seized a wooden plank, identified as the weapon of offence, from the bari land of P.W.3, and prepared the seizure list marked as Ext.6. The I.O. also seized a Jet bicycle lying at the spot and prepared the seizure list marked as Ext.3. On the following day,

the I.O. visited the District Headquarters Hospital (DHH), Dhenkanal, where the dead body of the deceased was kept, conducted the inquest over the body of the deceased vide Ext.2 and sent the body for post-mortem examination. The I.O. revisited the spot and seized blood-stained earth and plain earth samples, preparing the seizure list marked as Ext.7. He, then, issued a requisition for the medical examination of the injured, P.W.3, to the Medical Officer at C.H.C., Sriramchandrapur. Later, he seized the wearing apparel of the Appellant and forwarded him to the Court on 01.03.2009. On 16.04.2009, the I.O. received the post-mortem examination report of the deceased, and on 19.04.2009, he obtained the injury report of P.W.3. On 08.06.2009, the I.O. visited C.H.C., Sriramchandrapur, and made a query to the Medical Officer regarding the probable cause of the injuries, submitting a requisition marked as Ext.9/2, and received the medical officer, P.W.7's report on the same day. On 18.06.2009, he sent the blood-stained earth, sample earth, wooden plank, and the clothes of both the deceased and the Appellant to S.F.S.L. for forensic examination. Upon completion of the investigation, the I.O. submitted a chargesheet against the Appellant to face trial.

4. The case of the defence is one of complete denial and false accusations.

5. To bring home the charge, the prosecution examined 8 witnesses in all. P.Ws. 1 and 2 are brothers of the deceased, with P.W.1 being the Informant, P.W.3 is an injured witness, P.W.4 is the medical officer who conducted the post-mortem examination, P.W.5 is a seizure witness, P.W.6 is another eye-witness and the

son of P.W.3, P.W.7 is the medical officer who examined P.W.3, and finally P.W.8 is the I.O.

The defence, on the other hand, has examined one witness, D.W.1, who is the wife of the Appellant.

6. The learned trial Court having believed the evidence of the prosecution witnesses, found the prosecution to have proved its case beyond all reasonable doubt and held the Appellant guilty and convicted him awarding sentence as described above.

7. Ms. Susama Rani Sahoo, learned counsel for the Appellant, submits that the prosecution has failed to establish the charges under Sections 302 and 324 of the Indian Penal Code (IPC) beyond reasonable doubt, as firstly, the presence of the Appellant at the scene of the crime is doubtful. While the prosecution claims that several individuals were present at the time of the incident, only a limited number of witnesses were examined, raising questions about the selection of witnesses and whether the most material witnesses were presented. Furthermore, Ms. Sahoo asserts that the alleged bite mark on P.W.3's hand, a significant aspect of the prosecution's narrative, was not conclusively identified as such during the medical examination. This absence of clear evidence undermines the credibility of P.W.3's testimony. Additionally, Ms. Sahoo argues that the FIR's authorship remains a contentious issue, with conflicting accounts from P.W.1 and P.W.5. The informant stated that the FIR was written by a shopkeeper, whereas P.W.5 claimed to have drafted it himself, suggesting a lack of transparency and casting doubt on the integrity of the FIR. These inconsistencies, coupled with the selective presentation of witnesses, create a reasonable doubt about the Appellant's involvement in the crime.

8. Mr. Sarat Pradhan, learned Additional Standing Counsel for the State, on the other hand, emphasises that the testimony of an injured witness, i.e. P.W.3, carries significant evidentiary value and cannot be discredited lightly. P.W.3's injuries, corroborated by medical evidence and the testimony of P.W.7, validate his presence at the scene and his account of the events. He further contends that it is the quality, not the quantity, of witnesses that determines the strength of a case. The eye-witnesses, P.W.3 and P.W.6, provided detailed and consistent accounts of the incident, rendering the prosecution's case credible despite the limited number of witnesses examined. Mr. Pradhan also mentioned regarding the Appellant's claim of mental illness, the prosecution notes that this defense was introduced only during the trial through the testimony of D.W.1, the Appellant's wife. This delayed disclosure, unsupported by medical evidence, appears to be an afterthought and cannot be relied upon to absolve the Appellant of responsibility. Mr. Pradhan concluded his argument as collectively, the credible testimonies of the witnesses and the corroborating medical evidence firmly establish the Appellant's culpability.

9. Having regard to the arguments advanced by the learned counsel for the respective parties, it is incumbent to deal with the testimonies of the relevant witnesses for better appreciation of the case.

P.W.1, the informant and elder brother of the deceased, Madhab Pradhan, stated that on the evening of the incident, around 6:30 p.m., while he was at home, he received a phone call from one Sweta Sahu, who had been informed by Sabita, about the assault on his brother. He was told that the Appellant had assaulted Madhab

with the wooden leg of a cot on the head. He immediately rushed to the spot on his motorcycle, arrived around 7:00 p.m., and found his brother lying by the side of the road near Sanatan Behera's house, bleeding from a head injury. Around 50 people had gathered, including Sanatan, Pabitra, and Sabita, among others. He alongwith others, including Prakash, Anirudha, and Dullav, shifted Madhab to the District Headquarters Hospital (DHH) in Dhenkanal using a Maruti van belonging to his brother-in-law, Tima. The deceased was unresponsive during the journey. Around 11:00 p.m., the doctor declared him dead after treatment. He initially stayed in the village and went to the hospital later that night upon learning of his brother's death. He lodged the FIR at Gondia Police Station at about 8:30 p.m. that night, which was written by a shopkeeper near the police station as per his dictation. He signed the FIR after confirming its contents to be correct. He noted that his brother had been wearing a white lungi, a banian, and a napkin, and that his own clothes were blood-stained during the incident. P.W.1 mentioned that his family had a land dispute with the Appellant's family. He also stated that Sanatan (P.W.3) sustained injuries while trying to save the deceased, and the villagers, including Sanatan and Sabita, had confined the Appellant in a room but did not tie him up. During cross-examination, he confirmed that the incident occurred near the house of P.W.3 and that the deceased's cycle was found about 15 feet away from him, undamaged. He denied allegations that the case was fabricated at the behest of the village Sarpanch or due to any quarrel between the deceased and P.W.3.

P.W.2, Dullav Pradhan, another brother of the deceased Madhab Pradhan, stated that he reached the spot of the incident after being informed about the assault. He found his brother The

deceased lying unconscious by the side of the road near Sanatan Behera's house with a bleeding head injury. He, along with P.W.1 and others, shifted the deceased to the District Headquarters Hospital (DHH), Dhenkanal, in a Maruti van. The deceased was unresponsive during the journey, and the doctor declared him dead after treatment at around 11:00 p.m. P.W.2 confirmed that P.W.3 had tried to intervene during the assault and sustained injuries. He also stated that the Appellant was captured and confined in a room by the villagers after the incident. During cross-examination, P.W.2 denied any allegations of fabricating the case or having personal enmity with the Appellant. He corroborated the sequence of events described by P.W.1 and emphasized that the deceased's injuries were caused to the deceased by the Appellant's assault.

P.W.3, Sanatan Behera, an eyewitness and a resident of Sorisiapada, stated that on the evening of the incident, he saw the deceased returning home on his bicycle. The Appellant, Khirod Dehury, suddenly appeared holding a wooden plank with sharp edges and dealt a blow to the deceased's head, causing him to fall off his bicycle. The Appellant struck the deceased again, causing a severe bleeding injury that rendered him unconscious. When P.W.3 attempted to intervene and stop the Appellant, the latter attacked him with the same wooden plank, hitting him on the back and waist. During the scuffle, the Appellant bit him on the arm. Despite this, P.W.3 and others overpowered and confined the Appellant in a room until police intervention. During cross-examination, P.W.3 denied any allegations of The deceased having a quarrel with him or of the incident being fabricated. He emphasized that the assault was unprovoked and clearly witnessed by him. He also corroborated the involvement of other witnesses at the scene.

P.W.5, Pradip Kumar Rout, the Sarpanch of the village and the scribe of the FIR, testified that on the day of the incident, while he was at the Gondia market repairing his motorcycle, he was approached by P.W.1, Sulabha Pradhan, who informed him about the assault on the deceased. P.W.5 immediately wrote down the FIR as per P.W.1's dictation, read it aloud to him, and after confirming its correctness, P.W.1 signed the document. P.W.5 accompanied P.W.1 to Gondia Police Station, where the FIR was submitted, and later went to the spot of the occurrence.

He further stated that the wooden plank used in the assault was seized by the police in his presence and that he signed the seizure list. He corroborated that the deceased had sustained fatal injuries due to the assault and that the Appellant was captured and confined by the villagers until the police arrived.

During cross-examination, P.W.5 stated that he was not present at the spot when the assault took place and arrived only after being informed by P.W.1. He denied any personal enmity with the Appellant or any bias in writing the FIR. He also refuted allegations that the FIR was fabricated at his behest due to any village rivalry or political motive.

P.W.6, Pabitra Behera, the son of P.W.3 and another eyewitness, stated that he saw the Appellant attacking the deceased with a wooden plank, delivering multiple blows to his head, causing him to fall and bleed profusely. He confirmed that the deceased was unconscious following the assault. He also witnessed his father (P.W.3), attempting to stop the Appellant and being attacked in the process. P.W.6 corroborated that the Appellant bit P.W.3 during the struggle. Villagers, including P.W.3, managed to capture and

confine the Appellant in a room to prevent further harm. During cross-examination, P.W.6 denied any suggestion that the case was fabricated or that the incident stemmed from a prior quarrel. He reiterated that the Appellant acted violently and unprovoked, leading to Madhab's fatal injuries.

D.W.1, the wife of the Appellant, testified in support of her husband's defense. She claimed that the appellant had been falsely implicated in the case due to a longstanding land dispute between her family and the family of the deceased, Madhab Pradhan. She stated that this dispute had caused enmity between the two families, and the false allegations were a result of this hostility. She further deposed that on the date and time of the incident, the appellant was at home with her and did not leave their house. She also stated that the appellant, was suffering from a mental illness that made him prone to unpredictable behaviour and that he had been struggling with this condition for a long time. During cross- examination, D.W.1 admitted that the appellant had minor quarrels with the deceased in the past, but she denied any physical altercations. She also acknowledged that the villagers intervened in the land disputes from time to time, but no formal complaint or legal proceedings had been initiated over the issue. D.W.1 was unable to provide any medical records, reports, or other evidence to substantiate her claim regarding the appellant's mental illness.

10. Before analysing the culpability of the Appellant, it is incumbent to examine if the prosecution could successfully establish the death of the deceased to be homicidal in nature. During the post-mortem examination, P.W.4 observed the following external injuries on the deceased:

i. Lacerated wound of size 1 1/2th x 1/2th x 1/2th present above the right and left frontal bone of the skull. ii. Lacerated injury of size 1 1/2th x 1/2th x 1/2th present over the right temporal bone of the skull iii. Lacerated wound of size 1 1/2th x 1/2th x 1/2th present over the occipital bone of the skull

P.W.4 stated that on dissection the temporal, parietal, occipital and frontal bones were found fractured, brain matters were damaged, both middle meningeal arteries were damaged, and a big subdural haematoma was present. All other internal viscera were intact. He further stated that the probable cause of death was the damage caused to the brain leading to severe haemorrhage and the injuries found, appeared homicidal in nature.

These injuries were inflicted on vital parts of the body, particularly the head, which is a critical and vulnerable region. P.W.4 opined that the injuries were caused by a hard and blunt object, consistent with the identified as the weapon of offence i.e. the wooden plank. Furthermore, he stated that the injuries were sufficient to cause death in the ordinary course of nature, with the cause of death being attributed to severe haemorrhage and shock resulting from the head trauma. The placement, severity, and nature of the injuries indicate a deliberate and forceful attack, ruling out the possibility of accidental or self-inflicted harm. P.W.4 also clarified that there were no pre-existing medical conditions or natural causes contributing to the death of the deceased, further affirming that the injuries were the sole and direct cause. Thus, the medical evidence provided by P.W.4 conclusively establishes that the death was homicidal.

11. Coming to the culpability of the Appellant, the learned counsel for the Appellant argues that there is a significant inconsistency between the testimonies of P.W.1 and P.W.2 regarding their actions immediately after the incident involving the deceased. Both witnesses initially stated that they went to the spot and took the deceased to the hospital following the assault. However, during cross-examination, P.W.1 contradicted his earlier claim and provided a different sequence of events. He stated that he did not accompany his injured brother to the hospital immediately after the incident. Instead, he stayed in the village and only went to the hospital later when he received information that the doctor had declared his brother dead. In contrast, P.W.2 maintained a consistent narrative, affirming that both he and P.W.1 were involved in shifitng the deceased to the hospital after finding him injured at the spot. This discrepancy raises questions about the reliability of P.W.1's account, as his statements are internally inconsistent and at odds with the testimony of P.W.2.

P.W.1's shifting narrative could weaken the prosecution's position by providing the defense with grounds to argue that his testimony is unreliable or possibly fabricated since P.W.1 is the informant and the brother of the deceased, his credibility is crucial for the prosecution's case. However, it is also important to contextualise this inconsistency. Witnesses to traumatic events often have difficulty recalling precise details, especially when multiple people are involved in responding to an emergency.

12. Furthermore, the learned counsel for the Appellant has pointed out the discrepancy regarding the authorship of the FIR. According to P.W.1, the FIR was written by a shopkeeper near

Gondia Police Station as per his dictation. The shopkeeper read it back to him, and upon finding the contents correct, he signed it. He mentioned nothing about the involvement of P.W.5 (the Sarpanch) in drafting the FIR. Whereas, P.W.5 claimed that while he was at Gondia market repairing his motorcycle, P.W.1 approached him and narrated the incident. P.W.5 wrote the FIR as per P.W.1's dictation, read it back to him, and accompanied him to the police station for lodging the FIR. He did not mention a shopkeeper's involvement. The I.O. stated that he received the FIR at 8:30 p.m. on the night of the incident. He made an endorsement on the FIR (marked as Ext.1/2) confirming its receipt. However, he did not clarify in his testimony who authored the FIR whether it was the shopkeeper, as stated by P.W.1, or the Sarpanch, as stated by P.W.5.

Admittedly, P.W.5, being the Sarpanch, is a well-known and influential figure in the village. It is highly unlikely that P.W.1, who is expected to P.W.5, would confuse the Sarpanch with a shopkeeper or fail to recognise his involvement if he indeed wrote the FIR. The absence of clarity in the I.O.'s deposition complicates the matter. If P.W.5 indeed wrote the FIR, P.W.1's statement about the shopkeeper becomes questionable, and vice versa. Although, P.W.1 mentioned that the FIR was written near Gondia Police Station, whereas P.W.5 claimed it was written at the Gondia market which is in the same vicinity.

Nevertheless, the authorship of the FIR itself does not determine the guilt or innocence of the Appellant, but it is crucial for establishing the sequence of events and the reliability of witnesses. The inconsistency regarding the scribe of the FIR may

give the defense room to argue that the FIR is a post-occurrence fabrication, however, this discrepancy alone is unlikely to weaken the prosecution's case substantially if the chain of events and medical evidence remain consistent. Moreover, the defense has not been able to demonstrate that this discrepancy led to material prejudice against the Accused-Appellant.

13. The testimonies of P.W.3, Sanatan Behera, and P.W.6, Pabitra Behera, stand as crucial pieces of evidence, as they are eyewitnesses to the incident. In his sworn testimony, P.W.3, being an injured witness, provided a detailed account of the assault, stating that the Appellant used a wooden plank to strike the deceased on the head. P.W.3 further stated that when he intervened to stop the Appellant from inflicting more harm, the Appellant turned on him, hitting him on the back and waist with the same weapon and even biting him on his right hand.

P.W.6, the son of P.W.3, corroborated these details, asserting that he witnessed the Appellant attacking both the deceased and his father. Despite being related, their testimonies align consistently on material aspects, including the weapon used, the sequence of events, and the injuries inflicted. Both witnesses were unwavering during cross-examination, and their proximity to the spot as natural witnesses lends credibility to their statements.

14. Furthermore, the medical evidence provided by P.W.7, the doctor who examined P.W.3, further substantiates the testimony of the injured witness. P.W.7 found two abrasions on P.W.3's body:

i. Abrasion of size 2.5 cms x 2.5cms over right forearm on ventral aspect about 9cms from right wrist joint

ii. Abrasion of size 1.2 cms x 1 cm on upper part of interscapular area over mid line

15. The learned counsel for the Appellant argued that P.W.3 did not have "teeth marks" on his hand, undermining his claim of being bitten by the Appellant. However, this argument does not hold against the evidence adduced by P.W.7, the medical officer who examined P.W.3. While it is correct that P.W.7 did not explicitly describe the injury as "teeth marks," he identified an abrasion on P.W.3's forearm. Upon a specific query during the investigation, P.W.7 clarified that the abrasion on the forearm was consistent with an injury caused by a human bite. This medical opinion substantiates P.W.3's assertion that the Appellant bit him during the altercation.

The absence of a specific description such as "teeth marks"

does not diminish the significance of P.W.7's findings. Abrasions from a bite may not always present as distinct "teeth marks,"

especially in cases involving forceful movement or struggle. P.W.7's professional opinion bridges any perceived gap in this evidence, aligning the medical findings with P.W.3's testimony. Furthermore, the corroboration provided by P.W.6, who witnessed the Appellant biting P.W.3, strengthens the claim, making the Appellant's argument unconvincing. Thus, the medical evidence and consistent eyewitness testimonies collectively affirm the veracity of P.W.3's testimony.

16. The Apex Court in the matter of Balu Sudam Khalde and Another vs. The State of Maharashtra reported in [2023] 6 S.C.R. 851, has held that -

"26. When the evidence of an injured eye-witness is to be appreciated, the undernoted legal principles enunciated by the Courts are required to be kept in mind:

(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.

(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.

(c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.

(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.

(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.

(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded.

27. In assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their

evidence. Although in cases where the plea of the accused is a mere denial, the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or put forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence."

17. The principles outlined in the above decision emphasise that the testimony of injured witnesses shall not be lightly disregarded due to minor contradictions or immaterial embellishments. In the instant case, it is evident that P.W.3's presence at the scene of the crime is beyond doubt and aligns with the broad substratum of the prosecution's narrative. The argument advanced by the learned counsel for the Appellant regarding the absence of explicit "teeth marks" on P.W.3's hand does not amount to a compelling reason to discard his testimony, as corroborated by the medical evidence provided by P.W.7. Furthermore, the corroborative evidence of P.W.6 and the circumstances of the case confirm P.W.3's ability to witness and experience the events he described, with nothing inherently improbable in his version.

Additionally, the defense has not provided any evidence or circumstances to suggest that P.W.3 had a motive to falsely implicate the Appellant or allow the real perpetrator to escape. This aligns with the principle that an injured witness is unlikely to fabricate their narrative, particularly when their own injuries corroborate their testimony.

18. Not to mention, it is imperative upon this Court to address the defense plea of political rivalry. During the cross-examination of P.W.5, the Sarpanch, the defense suggested that he had falsely

implicated the Appellant due to political rivalry, specifically because the Appellant's family did not vote for him in the election. This line of questioning was aimed to establish a motive for bias and malice on the part of P.W.5, thereby undermining his credibility and the authenticity of the FIR, which he claimed to have written based on P.W.1's dictation. However, this suggestion remains speculative, as it is unsubstantiated by any independent evidence or testimony. Neither the Appellant nor any other witness provided corroboration to suggest that P.W.5 had a personal vendetta against the Appellant or that such rivalry influenced the lodging of the FIR. Political rivalry, as a defense plea, requires credible evidence to demonstrate that it materially influenced the investigation or the charges against the Appellant. In the absence of such proof, the plea appears to be a conjectural argument designed to create doubt. P.W.5's testimony, when viewed alongside the totality of the evidence, does not exhibit any inherent bias or improbability that would suggest fabrication or malice against the Appellant.

19. In view of the aforesaid, the evidence adduced by the prosecution, when assessed holistically, establishes beyond reasonable doubt that the Appellant is the true author of the crime. The medical evidence provided by P.W.4 unequivocally proves that the injuries sustained by the deceased were homicidal in nature, caused by a deliberate and forceful attack with a wooden plank. The placement and severity of the injuries on vital parts of the body, as corroborated by expert medical opinion, leave no room for doubt regarding the Appellant's intention to cause the said injuries.

The testimony of P.W.3, an injured eyewitness, further solidifies the prosecution's case. His account of the Appellant's actions is consistent, credible, and corroborated by P.W.6, another eyewitness, and P.W.7, the medical officer who examined his injuries. Any argument as discussed above fails to hold weight against P.W.7's medical findings and the overall consistency of the evidence. The discrepancies raised by the defense regarding the FIR's authorship and minor inconsistencies in witness testimonies are insufficient to create reasonable doubt. These points do not affect the core of the prosecution's narrative, which remains intact and supported by credible evidence.

20. Based on the evidence and circumstances of the case, it is well established that the Appellant caused the death of the deceased. However, at this point, the question arises as to whether, in the surrounding circumstances in which the crime was committed, the act amounts to murder under Section 302 IPC or culpable homicide not amounting to murder under Section 304 IPC.

21. It is apt to mention that the culpable homicide will be murder if the harm is caused by an act done with the intention of causing bodily injury, the bodily injury inflicted was intended, and the inflicted injury was sufficient in the ordinary course of nature to cause death. This clause was analysed properly in the case of Virsa Singh vs. State Of Punjab, AIR 1958 SC 465 by the Supreme Court. It was held that the prosecution must prove the following facts before it can bring a case under section 300 thirdly, i.e., "15. First, it must establish, quite objectively, that a bodily injury is present;

16. Secondly, the nature of the injury must be proved; These are purely objective investigations.

17. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended...

18. Once these three elements are proved to be present, the enquiry proceeds further and,

19. Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

20. ... If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional."

22. The Hon'ble Supreme Court in the above decision established the requirements for determining culpability under Clause "thirdly" of Section 300 IPC. These includes presence of bodily injury, nature of the injury, intention to inflict that particular injury, and sufficiency to cause death. Hence, if all these four conditions are satisfied, then the conduct element and fault element of the accused will result in the act of murder.

23. In the instant case, the doctor who conducted post mortem examination did not depose the injuries sustained by the deceased are individually or cumulatively fatal in ordinary course of nature to cause death though the report reveals the cumulative effect of the injuries have caused the death. Further, the medical evidence provided by P.W.4, particularly the extent of injuries inflicted on the deceased, demonstrates that the Appellant acted with the intention to cause bodily harm likely to result in death. However, the evidence does not conclusively establish premeditation or a clear intent to cause death, which is a prerequisite for conviction

under Section 302 IPC. To appropriately assess whether this act constitutes murder or culpable homicide not amounting to murder, the decisions of this Court in the matter of Makaru Naik vs. State of Odisha reported in (2024) 96 OCR 368; passed in JCRLA No. 08 of 2010, referring to the decisions of Hon'ble Supreme Court provide valuable guidance as follows -

In the case of Ram Asrey vs. State of U.P. reported in 1993 Supp (4) Supreme Court Cases 218, where also the Appellant used the backside of the bankas in assaulting the deceased, the Hon'ble Supreme Court held that it can be reasonably inferred that such assailant had no intention to cause the death of the victim, otherwise there was no reason to use the back side of the bankas, instead of sharp side which in normal course could have caused the death of the victim. Accordingly, the conviction under section 302 of the I.P.C. was set aside and instead the accused was convicted under section 304 Part-I of the I.P.C. In the case of State vs. Raja Parida and others reported in 1972 Criminal Law Journal 193 (MANU/OR/0129/1971), a Division Bench of this Court held as follows -

"14. The case against Appellant Raja, however, stands on a different footing. Both P.Ws. 2 and 3 say that Raja came to the spot saying that the Guard should be finished and struck a blow with the blunt side of the axe on the right side of the head of the Forest Guard and that minutes thereafter the Guard died. If really Raja intended to cause the death of the Guard, there is no reason why he did not use the sharp edge of the Tangia in giving the blow to the deceased. Merely because he said that the Guard should be finished, it does not necessarily mean that he intended that he should be killed. We are, therefore, not prepared to hold that the prosecution has proved beyond all reasonable doubt that Raja intended to kill the Guard. In this connection it is worth recapitulating the distinction between murder and

culpable homicide not amounting to murder by referring to Sections 299 and 300. I.P.C. Section 299 is divided into three parts. The first part refers to the act by which the death is caused by being done with the intention of causing death. That part corresponds to the first part of Section 300 I.P.C. The second part of Section 299, I.P.C. speaks of the intention to cause such bodily injury as is likely to cause death. This has corresponding provisions in clauses "secondly" and "thirdly" of Section 300, I.P.C. Section 304, Part I I.P.C. covers cases which by reason of the Exceptions under Section 300 I.P.C. are taken out of the purview of Clauses (1), (2) and (3) of Section 300, I.P.C. but otherwise would fall within it, and also cases which fall within the second part of Section 299 but not within Section 300 Clauses (2) and (3). The third part of Section 299 corresponds to "Fourthly" of Section

300. Section 304, Part II, I. P. C. covers those cases which fall within the third part of Section 299 but do not fall within the fourth clause of Section 300. As already stated, the case against Raja does not come under the first part of Section 300, I.P.C. Clause (2) of Section 300 is attracted only when the act 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. It includes cases of special knowledge of the constitution, constitutional defects or the ailments of the deceased. There is no evidence of the existence of such circumstances in this case. We do not have even evidence of the exact nature of the injury that is caused from which it is possible to infer that Raja had the knowledge that the injury which he intended to; inflict was likely to cause death. Clause (2) of Section 300, I.P.C. has therefore no application.

15. The next question is whether the injury is one which was intended to be caused and if so whether it was sufficient in the ordinary course of nature to cause death. If the injury caused is not in the ordinary course of nature sufficient to cause death, it is out of the purview of clause 'Thirdly' of Section 300, I.P.C. and would then appropriately fall under the second part of Section 299. I.P.C. Unfortunately in this case

the nature of the injury caused on the deceased by the single blow given by Appellant Raja is not known and much less is there any evidence that such blow is sufficient in the ordinary course of nature to cause death. In the circumstances, the Appellant must have the benefit of doubt and the case must go out of the purview of clause "Secondly" and "Thirdly" of Section 300, I.P.C. Surely the death of the deceased was not caused by the blow given on his legs and knees by the Appellant Hrushi. It can therefore, safely be held that the deceased died as a result of the blow given on his head by Raja. That blow was given with, the blunt edge of the Tangia on a vital part of the deceased, namely his head. The blow so given is neither unintentional nor accidental. In the circumstances of the case, the Appellant Raja must be held to have intended to give such a blow as is likely to cause death. We would, therefore, hold that the Appellant Raja is guilty under the first part of Section 304, I.P.C."

24. As held in Makaru Naik vs. State of Odisha (Supra), when the act is intentional but lacks premeditation and arises out of a sudden quarrel or provocation, the offense may be reduced to culpable homicide not amounting to murder. In the instant case, the assault, while deliberate and forceful, appears to have been a sudden act without prior planning or provocation from the deceased. The repeated blows to the head using a wooden plank, a hard and blunt object, were delivered during the heat of the moment, leading to severe injuries that caused the death of the deceased.

25. Similarly, the decision of the Hon'ble Supreme Court in the matter of Anbazhagan vs. The State Represented by the Inspector of Police reported in 2023 LiveLaw (SC) 500, further provide valuable guidance as follows -

"60. Few important principles of law discernible from the aforesaid discussion may be summed up thus:- (1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. To illustrate : 'A' is bound hand and foot. 'B' comes and placing his revolver against the head of 'A', shoots 'A' in his head killing him instantaneously. Here, there will be no difficulty in holding that the intention of 'B' in shooting 'A' was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Section 300 of the IPC. Taking another instance, 'B' sneaks into the bed room of his enemy 'A' while the latter is asleep on his bed. Taking aim at the left chest of 'A', 'B' forcibly plunges a sword in the left chest of 'A' and runs away.

'A' dies shortly thereafter. The injury to 'A' was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that 'B' intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of 'B' within Clause (3) of Section 300 of the IPC and render him guilty of the offence of murder although only single injury was caused.

(2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the

IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC.

(3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is 'guilty intention,' whereas the second part would apply when there is no such intention, but there is 'guilty knowledge'.

(4) Even if single injury is inflicted, if that particular injurywas intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder.

(5) Section 304 of the IPC will apply to the following classesof cases: (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression 'sufficient in the ordinary course of nature to cause death' but is of a lower degree of likelihood which is generally spoken of as an injury 'likely to cause death' and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death.

(6) The word 'likely' means probably and it is distinguished from more 'possibly'. When chances of

happening are even or greater than its not happening, we may say that the thing will 'probably happen'. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death.

(7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC.

(8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack. (9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and

intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries.

To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC.

(10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case.

(11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies.

(12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC."

26. From the above discussions, it is clear that the distinction between Part I and Part II is crucial. Under Section 304 IPC, culpable homicide not amounting to murder is classified into two parts, where Part I applies when the act is committed with the intention of causing death or such bodily injury as is likely to cause death. This requires a higher degree of culpability (guilty intention), and Part II applies when the act is committed with the knowledge that the act is likely to cause death but without the intention to cause death or such bodily injury. This requires only awareness of the likely consequences (guilty knowledge).

27. In the instant case, the post-mortem examination report confirms multiple lacerated injuries to the head, with severe fractures to the frontal, temporal, and parietal bones. The injuries were inflicted using a wooden plank, a blunt object, capable of causing grievous harm when used with significant force. The injuries were severe, located on the head, which is a vital part of the body and objectively sufficient to cause death in the ordinary course of nature. The repeated blows demonstrate the grievous nature of the injuries caused. The Appellant repeatedly struck the deceased on the head, indicating a clear intention to cause serious harm. The deliberate targeting of a vital part of the body and the force used suggest that the injuries were not accidental or unintentional but intended. While the wooden plank is not a conventionally lethal weapon, its use in this manner reflects intent to inflict grievous injury likely to cause death. The injuries inflicted were objectively sufficient to cause death in the ordinary course of nature. The causal connection between the injuries and the death is supported by the medical evidence.

The evidence demonstrates that the Appellant acted with the intention to cause grievous bodily harm, making the case one of guilty intention to cause the injury rather than mere knowledge. As clarified in Anbazhagan (Supra), this is sufficient to bring the case under Section 304 Part I IPC. While the act may not have been premeditated, the deliberate targeting of the head with a blunt weapon shows intent to cause grievous harm likely to result in death. The use of a wooden plank for repeated blows to the head demonstrates intent to inflict fatal injuries, distinguishing this case from those falling under Section 304 Part II IPC. Furthermore, the injuries sustained by P.W.3 (Sanatan Behera) during his intervention are corroborated by the medical evidence provided by P.W.7, establishing the appellant's culpability under Section 324 IPC for voluntarily causing hurt by a dangerous weapon.

28. In view of the above, the conviction of the Appellant under Section 302 IPC is altered to one under Section 304 Part I IPC. Accordingly, the Appellant is sentenced to undergo rigorous imprisonment for ten years for the offense under Section 304 Part I IPC. The conviction and sentence imposed by the learned trial court under Section 324 IPC are upheld, as the evidence clearly establishes the Appellant's culpability for voluntarily causing hurt to P.W.3 with a dangerous weapon. Both sentences shall run concurrently.

29. In the event the Appellant has already undergone the substantive sentence as above imposed by us, and, his detention is not required in any other case, he shall be set at liberty forthwith.

30. As a result, the JCRLA is allowed in part.

Before parting with the case, we would like to put on record our appreciation to Ms. Susama Rani Sahoo, learned Advocate representing the Appellant, for rendering her valuable help and assistance towards arriving at the decision above mentioned. This Court also appreciates the valuable help and assistance provided by Mr. Sarat Pradhan, learned Additional Standing Counsel.

(Chittaranjan Dash) Judge

(S.K. Sahoo) Judge

K.C.Bisoi

Location: HIGH COURT OF ORISSA Date: 04-Feb-2025 10:14:32