Orissa High Court
Sugyan Pradhan vs State Of Odisha on 27 January, 2025
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA No.91 of 2010
An appeal under section 374 Cr.P.C. from the judgment and
order dated 30.08.2010 passed by the learned Additional
Sessions Judge, Phulbani in S.T. No.75 of 2009.
-------------------------
Sugyan Pradhan ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant: - Mr. Niranjan Panda
Legal Aid Counsel
For Respondent: - Mr. Jateswar Nayak
Addl. Govt. Advocate
-------------------------
P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
AND
THE HONOURABLE MR. JUSTICE A.C. BEHERA
---------------------------------------------------------------------------------------
Date of Hearing and Judgment: 27.01.2025
---------------------------------------------------------------------------------------
By the Bench: The appellant Sugyana Pradhan faced trial in the
Court of Additional Sessions Judge, Boudh in S.T. Case No.75 of
2009 for offences punishable under Sections 302, 506 and 201
of the Indian Penal Code (in short „I.P.C.‟) on the accusation
that on 26.06.2009 at about 6.00 a.m. at Mahibahal, Harijan
Sahi, he committed murder of his father Ramesh Pradhan
(hereinafter called as the „deceased‟) and also committed the
act of criminal intimidation by threatening the informant (P.W.1)
and his elder son and also after having reason to believe that
the murder of his father has been committed, he concealed the
weapon of offence, i.e., Tangia (M.O.III) to cause disappearance
of evidence.
The learned Trial Court vide judgment and order
dated 30.08.2010, though acquitted the appellant of the charges
under sections 506 and 201 of the I.P.C., but found him guilty
under section 302 of the I.P.C. and sentenced him to undergo
imprisonment for life and to pay a fine of Rs.5000/-(rupees five
thousand), in default, to undergo further imprisonment for a
period of two years.
Prosecution Case:
2. The prosecution case, as per the F.I.R. lodged by
P.W.1 Biren Dipa before the Inspector-in-Charge of Boudh Police
Station on 26.06.2009, in short, is that on that day, in the early
morning at about 6.00 a.m. while he was present in front of his
house, he saw the deceased and his son (appellant) were
proceeding with a pair of bullock. The deceased was following
the appellant and prevented the appellant to take the bullocks
for selling, for which, the appellant assaulted the deceased with
a Tangia (M.O. III) on the head. After the deceased fell down on
the ground, the appellant assaulted him on the neck. When
P.W.1 tried to intervene, the appellant showed him Tangia, for
which, the informant came inside the village and informed about
the incident in the house of the deceased. P.W.1 and the elder
son of the deceased shifted the deceased to Phulbani Hospital,
who was in a serious condition and seeing them, appellant fled
away from the spot.
The oral report of P.W.1 was reduced into writing by
Babuli Kanhar (Gram Rakhi) (P.W.2), attached to Boudh Police
Station and it was read over to P.W.1 and P.W.1 gave his LTI on
the report. The written report was presented before the I.I.C. of
Boudh Police Station and accordingly, Boudh P.S. Case No.67 of
2009 was registered on 26.06.2009 under sections 324, 307 of
the I.P.C.
P.W.14, the I.I.C himself took up investigation of the
case after registering the F.I.R. and during the course of
investigation, he examined the informant (P.W.1) as well as the
scribe of the F.I.R. Babuli Kanhar (P.W.2), who had accompanied
him to the police station. The I.O. visited the spot and prepared
the spot map (Ext.10) and examined other witnesses. He
collected bloodstained earth, sample earth in presence of the
witnesses and prepared the seizure list (Ext.2). He also
examined other witnesses, searched for the appellant and finally
apprehended him from village Charichak and arrested him. While
in police custody, the appellant in presence of the witnesses
disclosed to have thrown the Tangia (M.O. III) in the water of
Laxmi Nala and also volunteered to give recovery of the same.
The statement of the appellant under section 27 of the Evidence
Act was recorded by the I.O. vide Ext.4 and thereafter, the
appellant led the witnesses and the police party to the said Nala
and from the water, he brought out the Tangia and produced the
same before the I.O., which was seized as per the seizure list
(Ext.3).
During the course of investigation, P.W.14, the I.O.
came to know that the deceased was referred to M.K.C.G.
Medical College and Hospital, Berhampur for better treatment
and then he seized the wearing apparels of the appellant under
seizure list (Ext.6) and on 27.06.2009, the appellant was
forwarded to the Court. Subsequently, more witnesses were
examined and on 29.06.2009, the I.O. came to know that the
deceased succumbed to his injuries while undergoing treatment
at S.C.B Medical College and Hospital, Cuttack. On receipt of
intimation from the S.C.B Medical College and Hospital, one U.D.
case was registered at Mangalabag Police Station and inquest
was held and the dead body was sent for post mortem
examination and P.W.12, Assistant Professor of the Department
of F.M.T., S.C.B. Medical College and Hospital conducted post
mortem examination and submitted his report vide Ext.8. The
I.O. also received the reports from the District Headquarters
Hospital, where the deceased was treated in an injured
condition. The I.O. then received the U.D. case records from
Mangalabag Police Station, the inquest report, dead body challan
and post mortem examination report and he also took steps for
sending the exhibits to the S.F.S.L., Rasulgarh, Bhubaneswar for
chemical examination and received the chemical examination
report vide Ext.15. On completion of investigation, he submitted
charge sheet on 15.10.2009 against the appellant under sections
302, 201 and 506 of the I.P.C.
Framing of Charges:
3. After submission of charge sheet, the case was
committed to the Court of Session for trial after observing due
committal procedure where the learned trial Court framed
charges against the appellant as aforesaid and since the
appellant refuted the charges, pleaded not guilty and claimed to
be tried, the sessions trial procedure was resorted to prosecute
him and establish his guilt.
Prosecution Witnesses, Documents Exhibited and M.Os.
proved By Prosecution:
4. During the course of trial, in order to prove its case,
prosecution examined as many as fourteen witnesses.
P.W.1 Biren Dipa is the informant. He stated that
about one year back, the deceased had been killed in front of his
house by the appellant. He further stated that on the fateful day
in the early morning, he was present in front of his house and
noticed that while the deceased was passing through the front of
his house, the appellant suddenly dealt blow by means of tangia
on the head of the deceased and noticing this, he interfered and
asked the appellant as to why he was inflicting tangia blows on
the deceased and thereafter, he rushed into the village and
informed the matter to P.W.5, who is the son of the deceased.
P.W.2 Babuli Kanhar is the scribe of the F.I.R.
P.W.3 Rabi Pradhan, who is the son of the deceased,
stated that around one year back, one early morning, the
appellant killed the deceased by inflicting tangia blow in front of
the house of P.W.1 and at the relevant time, he was attending
the call of nature and therefrom, he witnessed the incident.
P.W.4 Ashok Pradhan, who is another son of the
deceased, stated that the appellant killed the deceased by
inflicting tangia blows. He is a witness to the seizure of tangia
and blood stained earth as well as sample soil as per seizure lists
marked as Ext.2 and Ext.3 respectively.
P.W.5 Bigyana Pradhan is the elder brother of the
appellant and son of the deceased. He stated that at the relevant
time, he was sleeping in his house and when P.W.1 came to his
house and informed that the appellant inflicted tangia blows on
his father and killed him in front of the house of P.W.1, he
rushed to the spot and found that his father was lying in a pool
of blood and he found cut injuries on his neck, backside of the
head and on his back. He further stated that he himself with the
help of P.W.6 and others shifted the deceased to Phulbani
Hospital and then he (deceased) was referred to S.C.B. Medical
College & Hospital, Cuttack where he died. He further stated that
when he arrived at the spot, he found that the appellant being
armed with a tangia fled away from the spot. He is a witness to
the inquest over the dead body of the deceased and proved the
inquest report marked as Ext.5.
P.W.6 Susila Pradhan is the younger brother of the
deceased. He stated that on 26.06.2009, the appellant murdered
the deceased and on that morning around 5.00 a.m., while he
was performing his morning walk, he heard hulla raised by P.W.1
from the side of his own house and he rushed to the spot and
found that the deceased was lying in a pool of blood in front of
the house of P.W.1 and the appellant being armed with a Tangia
ran away towards the rivulet of their village. He further stated
that reaching near the deceased, he found that the deceased
was lying on the ground facing downward having cut injuries on
the back portion of his head, scapula of his back and was
struggling for life and thereafter, he along with others took the
deceased to Phulbani Hospital and the deceased was then
referred to S.C.B. Medical College and Hospital, Cuttack where
he succumbed to his injuries. He is also a witness to the inquest
over the dead body of the deceased and proved the inquest
report marked as Ext.5.
P.W.7 Chaturbhuja Pradhan is a co-villager of the
appellant and the deceased. He stated in similar manner like
P.W.6.
P.W.8 Kadambini Joshi, who was working as
constable attached to Boudh police station, is a witness to the
seizure as per seizure list marked as Ext.6.
P.W.9 Sudarsan Dipa is a co-villager of the appellant
and the deceased. He is also a witness to the disclosure
statement of the appellant and he proved the disclosure
statement marked as Ext.4/1. He is also a witness to the seizure
as per seizure lists marked as Exts.2 and 3.
P.W.10 Banamali Behera stated that on hearing cry,
he rushed towards the house of P.W.1 and found that the
deceased was lying with injuries on his person on the village
road in front of the house of P.W.1 and by then, the appellant
had already fled away. Thereafter, he did not support the
prosecution case for which he was declared hostile by the
prosecution.
P.W.11 Dr. Shyama Prasad Panigrahi was posted as
the Assistant Surgeon, District Headquarters Hospital, Phulbani.
He stated that on 26.06.2009, the deceased was admitted into
the Surgical Ward with certain bodily injuries on his person and
he medically examined him. He further stated that due to the
severity of the injuries and physical condition, he referred the
deceased for better treatment to S.C.B. Medical College and
Hospital, Cuttack. He proved his report marked as Ext.7.
P.W.12 Dr. Soumya Ranjan Naik was posted as the
Assistant Professor, Department of F.M.T., S.C.B. Medical College
and Hospital, Cuttack. On police requisition, he conducted post
mortem examination over the dead body of the deceased and
proved his report vide Ext.8.
P.W.13 Suryanarayana Das was working as S.I. of
Police attached to Mangalabag police station, who is the
enquiring officer of the U.D. Case No.762 of 2009 and on
31.08.2009, he handed over the charge of enquiry to the I.I.C.
Mangalabag police station.
P.W.14 Suresh Kumar Das was working as the
Inspector in-charge of Boudh police station and he is the
Investigating Officer of the case.
The prosecution exhibited fifteen documents. Ext.1 is
the F.I.R., Exts.2, 3, 6, 12, 13 are the seizure lists, Ext.4/1 is the
disclosure statement of the appellant, Ext.5 is the inquest report,
Ext.7 is the injury report of the appellant, Ext.8 is the post
mortem report, Ext.9 is the dead body chalan, Ext.10 is the
topography of spot map, Ext.11 is the VHF message, Ext.14 is
the office copy of forwarding letter and Ext.15 is the Chemical
Examination Report.
The prosecution also proved three material objects.
M.O.I is the lungi, M.O.II is the Gamucha and M.O.III is the
Tangia.
Defence Plea:
5. The defence plea of the appellant is that on
25.06.2009, the deceased met with a vehicular accident and he
was shifted to Phulbani Hospital by his brother and uncle in a
Jeep and then, he was referred to S.C.B Medical College and
Hospital, Cuttack for treatment and the case has been falsely
instituted against him by his brother and his uncle in order to
grab his properties. The appellant examined himself as D.W.1.
Findings of the Trial Court:
6. The learned trial Court after assessing the oral as
well as documentary evidence on record came to hold that the
deceased met with a homicidal death. The learned trial Court
also accepted the evidence of the eye witnesses (P.W.1 and
P.W.7) and also the corroborative evidence, which has been
adduced by P.Ws.3, 5 and 6, who have seen the appellant
running away from the spot while the deceased was lying in a
pool of blood. The learned trial Court also accepted the
prosecution case relating to the leading to discovery of the
weapon of offence, i.e., Tangia (M.O. III) at the instance of the
appellant and came to hold that there is no evidence that for the
recovery or giving a statement under section 27 of the Evidence
Act, there was any manner of threat, coercion or allurement
given to the appellant. Though, the learned trial Court gave
benefit of doubt to the appellant, so far as the commission of
offences under sections 201 and 506 of the I.P.C. are concerned,
but on overall analysis of the evidence, it came to hold that the
prosecution has well established the case against the appellant
that he committed the murder of the deceased and accordingly
found him guilty under section 302 of the I.P.C.
Contentions of the Parties:
7. Mr. Niranjan Panda, learned counsel for the
appellant argued that the occurrence took place in the early
morning and P.W.3 has stated that there was slight darkness at
the relevant time of the occurrence and he has further stated
that he had not seen anyone else near the close vicinity and
therefore, the presence of P.W.1 and P.W.7, the two eye
witnesses at the scene of occurrence is a doubtful feature and
since there was darkness, it would not have been possible on the
part of P.W.1 and P.W.7 to mark the assault. Learned counsel
further argued that in the factual scenario, when the appellant is
the son of the deceased and there was no previous animosity
between the father and son and the occurrence happened all on
a sudden when the appellant was prevented by the deceased to
take the bullocks for sale and on grave and sudden provocation,
the appellant dealt the blows to the deceased by means of a
Tangia (M.O. III), therefore, the case would fall squarely within
Exception 1 or Exception 4 to section 300 of the I.P.C. and it
would be a case under section 304 Part-1 of the I.P.C. and not
under section 302 of the I.P.C. Learned counsel further submits
that the appellant was taken into judicial custody since 2009 and
thus, after altering the conviction to one section 304 Part-1 of
the I.P.C., the sentence be reduced to the period already
undergone.
Mr. Jateswar Nayak, learned Additional Government
Advocate for the State, on the other hand, supported the
impugned judgment and argued that both P.W.1 and P.W.7 are
the co-villagers of the appellant as well as the deceased and the
occurrence took place at about 6.00 O‟ Clock in the morning in
the month of June and therefore, it cannot be said that there
would be any issue to the visibility factor of both the eye
witnesses. He further argued that the evidence of both the eye
witnesses is getting corroboration from the medical evidence
adduced by the doctor (P.W.12), who had seen a number of
injuries, not only on the vital part of the body like head, but also
on the chest and opined the cause of death to be intracranial
haemorrhage. Learned counsel for the State further urged that
the learned trial Court has also rightly placed reliance on the
evidence of P.Ws.3, 5 and 6, as they had seen the appellant
running away from the spot. The additional evidence against the
appellant is that at his instance, the weapon of offence, i.e.,
Tangia (M.O. III) was recovered basing on his statement
recorded under section 27 of the Evidence Act. He further argued
that it is not a case of grave and sudden provocation and the
deceased merely asked the appellant not to take the bullocks to
sell, as it was a cultivation season and the reaction of the
appellant in assaulting the deceased mercilessly even after he
fell down on the ground lying face downwards and dealing
repeated blows on the scalp shows his intention to commit the
murder. Therefore, the learned trial Court has rightly found the
appellant guilty under section 302 of the I.P.C. and the appeal
should be dismissed.
Whether the prosecution proved the homicidal death of
deceased:
8. Adverting to the contentions raised by the learned
counsel for the respective parties, let us first analyze the
evidence on record as to whether the prosecution has
successfully established that the deceased met with homicidal
death or not.
Apart from the inquest report (Ext.5), the evidence
of the doctor (P.W.12), the Assistant Professor attached to the
Department of F.M.T., S.C.B. Medical and College Hospital,
Cuttack, who conducted the post mortem examination over the
dead body of the deceased on 28.06.2009 is very relevant. The
doctor noticed the following external injuries:-
EXTERNAL INJURIES
(i) There is a stitched incised wound of scalp
measuring to 10 cm x 1 cm x skull deep present
on right parietal eminence. The edges of the
wound were not smooth or so cleanly cut and
there is gapping of edges. There is infiltration of
blood in the margins of the wound. There was no
fresh bleeding;
(ii) Similar stitched incised wound on the scalp
having size 7 cm x 1.5 cm x skull deep, adjacent
to wound no.1 (supra) and merged with that in
the shape of "V";
(iii) Similar stitched incised wound of size 2 cm
x 0.5 cm x 0.5 cm present on the scalp present
on left side forehead;
(iv) Similar stitched incised wound of size 2 cm
x 0.5 cm x 0.5 cm present on the scalp 1cm
posterior to left ear;
(v) Another stitched incised wound of size 7
cm x 2 cm x skull deep of scalp present 5 cm
posterior to the left ear. The edges of the wound
are not cleanly cut and there was gapping of
edges. There was infiltration of blood in the
margins of the wound. There was no fresh
bleeding;
(vi) Similar stitched incised wound of size 7 cm
x 1 cm x 0.5 cm present just above the left
supra clavicular fossa;
(vii) Similar stitched incised wound of size 7 cm
x 1.5 cm x 2 cm was present vertically on the
left side back of the chest at the medial border
of scapula;
(viii) Similar stitched incised wound of size 8 cm
x 2 cm x 2 cm was present horizontally on the
right side back of the chest between medial
border of scapula and midline of the back;
(ix) Similar stitched incised wound of size 2.5
cm x 1 cm x 0.5 cm was present on the left
shoulder;
(x) One stitched lacerated wound of size 5 cm
x 0.5 cm x 0.5 cm was present on the scalp 5
cm above the left ear;
(xi) Multiple small abrasions with reddish scab
over that over an area of 6 cm x 6 cm present
on the dorsum of the right knee;
(xii) Similar multiple small abrasions over an
area of 2 cm x 2 cm present on the dorsum of
the left elbow.
INTERNAL INJURIES:
There was a contusion of under surface of scalp of
size 8 cm x 8 cm on the left parietal area. There was a fracture
of skull at right parietal eminence corresponding to external
injury no.(i) (Supra). There was another cut fracture of the scalp
adjacent to the above cut fracture corresponding to external
injury no.(ii) (Supra). Dura was cut underneath the fractured
skull corresponding to external injury no.(i) (Supra). There was
presence of extradural haemorrhage of 0.5 cm thickness on right
side. There was a thin layer of subdural haemorrhage over the
left cerebral hemisphere. There was presence of multiple
hemorrhages in the pons (vital part of the brain). Stomach was
intact and empty. All other organs were intact and congested.
On the basis of the external and internal injuries,
P.W.12 came to the following conclusion and opinion:-
(i) The external injury nos.(i) to (ix) and the
corresponding internal injuries were ante
mortem in nature and caused by moderately
heavy to heavy cutting weapons;
(ii) The external injury nos.(x), (xi) and (xii)
were also ante mortem in nature and might
have been caused by hard and blunt force/object
impact;
(iii) The external injury nos.(i) and (ii) and
corresponding internal injuries were individually
as well as collectively are fatal in ordinary course
of nature;
(iv) Death was due to intracranial
haemorrhage;
(v) The age of the injuries appeared to be
within one to two days from the time of post
mortem examination;
(vi) The time since death was within about 18
to 24 hours prior to the autopsy.
P.W.12 proved the post mortem report as Ext.8 and
he has specifically stated that Tangia (axe), Kati, Bhujali come
under the category of moderately heavy to heavy weapon.
Nothing has been brought out in the cross-
examination to disbelieve the evidence of P.W.12. In view of the
inquest report (Ext.5) coupled with the evidence adduced in this
case and more particularly, the evidence of the doctor (P.W.12),
who conducted post mortem examination and proved the post
mortem report (Ext.8), we are the view that the learned trial
Court has rightly came to the conclusion that the deceased met
with a homicidal death. The learned counsel for the appellant has
not disputed such finding.
Analysis of the evidence of eye witnesses and other
evidence:
9. There are two eye witnesses to the occurrence.
P.W.1 Biren Dipa has stated that the occurrence took place in
front of his house. On the date of occurrence in the early
morning, he was present in front of his house and he noticed
that while the deceased was passing in front of his house, the
appellant dealt blows by means of Tangia on the head. He
interfered and asked the appellant as to why he was inflicting
Tangia blows to the deceased and then he rushed to the village
and informed the matter to P.W.5, the son of the deceased. He
further stated that he informed the matter at the police station
and one person scribed the F.I.R. and the deceased was shifted
to Phulbani Hospital. In the cross-examination, he has stated
that the incident took place at a distance of about 200 cubits
ahead of his house and the incident happened early dawn on
that morning and he had not marked as to where, the axe blow
hit the person of the deceased. He stated that he could not say
as to who scribed the report, which was presented at the police
station and further stated about the presence of houses near the
place of occurrence. Nothing has been brought out in the cross-
examination of P.W.1 to disbelieve his evidence.
P.W.7 Chaturbhuja Pradhan has stated that in the
early morning on 26.06.2009 while he had been to attend the
call of nature, he heard the voice of P.W.1 from the side of his
house to the effect that the appellant was dealing blows to the
deceased and hearing such shout, he reached at the spot, i.e., in
front of the house of the P.W.1 where he noticed the deceased,
who was lying facing downwards and the appellant was inflicting
Tangia blows on his back. When he shouted, the appellant ran
away with the Tangia. He further stated that the appellant
inflicted Tangia blows to the deceased as the deceased protested
him taking the pair of bullocks of the family to sell despite the
time was a cultivable season. In the cross-examination, he has
stated that the spot of occurrence would be around 50 to 60
meters away from the village locality and by the time of his
arrival at the spot, none else had reached near the deceased.
The contention of Mr. Panda, learned counsel for the
appellant referring to the evidence of P.W.3 is required to be
discussed here.
P.W.3 is a witness, who has also stated that he had
been to attend the call of nature and therefrom he saw the
occurrence that the appellant was inflicting Tangia blows to the
deceased in front of the house of P.W.1 and then, the appellant
fled away from the spot. The learned trial Court disbelieved him
as an eye witness. In the cross-examination, P.W.3 has stated
that at the relevant point of time, there was slight darkness and
he had not seen anybody else near the vicinity. Since P.Ws.1 and
7 are the co-villagers, in our humble view, in the early morning
at about 6.00 a.m. in the month of June, there would not have
been any difficulty for these witnesses to identify the appellant
and the deceased and also the manner of assault. The witnesses
were at different position watching the occurrence. P.W.3 was
attending the call of nature at a distance of about 200 cubits
away from the spot and from there he stated to have witnessed
the occurrence. P.W.1 was present in front of his house. Nothing
has been brought out from the evidence of P.W.3 that the front
of the house of P.W.1 was visible to him. Thus, the mere
statement of P.W.3 that he could not see anyone near the
vicinity does not rule out the presence of P.W.1 or P.W.7 at the
spot to see the occurrence of assault on the deceased. When
nothing has been brought out in the evidence of P.W.1 and
P.W.7 to doubt their presence at the spot, the mere statement of
P.W.3 cannot be a ground to discard their version as eye
witnesses.
P.W.3 has stated to have seen the appellant fleeing
away from the spot. The evidence of other witnesses like P.W.5
and P.W.6 are equally important. P.W.5 has stated that when
P.W.1 came to his house and informed that the appellant had
inflicted Tangia blows to his father (deceased), he rushed to the
spot and found the deceased was lying in a pool of blood in front
of the house of the P.W.1 and there were cut injuries on the neck
and backside of his head and whereafter the deceased was
shifted to Phulbani Hospital. He further stated that the appellant
being armed with a Tangia was running away towards Laxmi
Nala. P.W.6 has also stated that on hearing hulla raised by P.W.1
from the side of his house, he rushed to the place and found the
deceased was lying in a pool of blood in front of the house of
P.W.1 and the appellant being armed with Tangia was running
away towards the culvert of the village. He further stated that
the deceased was lying on the ground facing downwards with cut
injuries on the back portion, scalp and struggling for life and he
was shifted to Phulbani Hospital. The conduct of the appellant in
escaping from the scene of the occurrence holding Tangia is
relevant under section 8 of the Evidence Act.
In view of the evidence of all these witnesses as
discussed above, we are of the view that the prosecution has
proved that the occurrence in question took place in front of the
house of P.W.1. The manner of assault of the deceased as
deposed to by P.W.1 and P.W.7 is getting corroboration from the
evidence of the doctor (P.W.12) and from the post mortem
report findings. In addition to that, the evidence of the witnesses
i.e. P.Ws.3, 5 and 6 that the appellant was seen decamping from
the spot holding Tangia is also a factor, which strengthened the
prosecution case.
The evidence of the Investigating Officer (P.W.12) is
that while in police custody, the appellant volunteered to give
recovery of the weapon of offence and accordingly, the
statement was recorded and he led the witnesses and the police
party to the water from where he brought out the Tangia (M.O.
III) and produced the same before him and accordingly, the
seizure list (Ext.3) was prepared. The learned trial Court has
rightly placed reliance on such evidence.
Therefore, from the evidence of eye witnesses, the
witnesses to the circumstances relating to running away of the
appellant from spot holding the weapon coupled with the medical
evidence, we are of the view that the prosecution has proved
that it was due to the repeated blows given by the appellant by
means of Tangia that has resulted in the death of the deceased.
Whether the conviction of the appellant under section
302, I.P.C. is justified?:
10. The next contention raised by the learned counsel for
the appellant is that the case would squarely fall within the ambit
of Exception 4 or Exception 1 to section 300 of the I.P.C. and the
conviction should be altered to one under section 304 Part-I of
the I.P.C.
„Culpable homicide‟ has been defined under section
299 of the I.P.C. Culpable homicide is murder, if it comes under
any of the four clauses as mentioned under section 300 of the
I.P.C.
So far as Exception 4 to section 300 of the I.P.C. is
concerned, the culpable homicide is not murder if it is committed
without premeditation in a sudden fight in a heat of passion upon
a sudden quarrel and without offender having taken undue
advantage or acted in a cruel or unusual manner. The help of
Exception 4 to section 300 of I.P.C. can be invoked if death is
caused: (a) without premeditation, (b) in a sudden fight, (c)
without the offender having taken undue advantage or acted in a
cruel or unusual manner and (d) the fight must have been with
the person killed. To bring a case within Exception 4, all the
ingredients mentioned in it must be found. (Ref: (2023) 13
Supreme Court Cases 365, Balu Sudam Khalde -Vrs.- State
of Maharashtra). However, in this case, there is lack of
evidence that there was any sudden fight in a heat of passion
upon a sudden quarrel between the appellant and the deceased.
Therefore, we are of the view that Exception 4 would not be
applicable.
Coming to the Exception 1 to section 300 of the
I.P.C., it is stated that 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. This Exception 1 is subject to certain
provisos. So far as the 1st proviso to Exception 1 is concerned, it
is stated that the provocation is not sought or voluntarily
provoked by the offender as an excuse for killing or doing harm
to any person. In the case at hand, as it appears, it was a
cultivable season and the deceased asked the appellant not to
take the bullocks for the purpose of selling. P.W.5, the brother of
the appellant has stated in the cross-examination that they all
the brothers in their family are partitioned by metes and bounds
and accordingly, the individual brothers had got their own pairs
of bullocks and cows, but, no such plea has been taken by the
appellant that he was going to sell the bullocks which fell to his
share, to which, his deceased father prevented, rather, he has
taken the plea that his father met with a vehicular accident and
was shifted to the hospital and died during course of treatment.
Even though, such a plea has been taken by the appellant being
examined as D.W.1, but, no such suggestion has been given to
the doctor (P.W.12), who conducted the post mortem
examination that the injuries, which were noticed by him on the
person of the deceased were possible by vehicular accident. No
such suggestions have also been given to the eye witnesses i.e.
P.W.1 and P.W.7. Moreover, when the appellant was examined
under section 313 of the Cr.P.C., he has not taken any such plea
that the deceased met with a vehicular accident, for which, he
was shifted to the hospital and died. Therefore, whatever the
appellant has deposed to as D.W.1, it appears to be an
afterthought story and no reliance can be placed on it. Therefore,
the defence plea is totally not acceptable.
Coming to the factual scenario, we are of the view
that it cannot be said to be a case of grave and sudden
provocation on the part of the appellant to loss his power of self-
control and to deal blows after blows with sharp side of Tangia
(M.O. III) on the vital parts of the body of the deceased. No
overt act alleged against the deceased by which it can be stated
that the appellant was provoked by deceased to satisfy
requirements of first proviso to Exception 1 to section 300 of the
I.P.C. From the proved facts, it appears that provocation was
voluntary on the part of the appellant. Such provocation cannot
come to the rescue of the appellant. The manner in which the
assault has been made, number of injuries caused to the
deceased and as noticed by the doctor on the scalp itself shows
that the assault had resulted in causing fracture of scalp leading
to haemorrhage and the sharp side of the Tangia has been used
and the doctor has stated that the external injury nos. (i) and (ii)
and the corresponding internal injuries are fatal in any ordinary
course of nature to cause death. Therefore, we are of the view
that the act by which the death was caused was done with the
intention of causing death and it squarely comes under clause
„firstly‟ of section 300 of the I.P.C. and none of the exceptions
are attracted and the learned trial Court has rightly found the
appellant guilty under section 302 of I.P.C.
Conclusion:
11. In view of the forgoing discussions, JCRLA being
devoid of merits, stands dismissed. The impugned judgment and
order of conviction stands confirmed.
The trial Court records with a copy of this judgment
be sent down to the concerned Court forthwith for information.
Before parting with the case, we would like to put on
record our appreciation to Mr. Niranjan Panda, the learned Legal
Aid counsel for rendering his valuable help and assistance
towards arriving at the decision above mentioned. This Court
also appreciates the valuable help and assistance provided by
Mr. Jateswar Nayak, learned Additional Government Advocate.
(S.K. Sahoo)
Judge
(A.C. Behera)
Judge
Orissa High Court, Cuttack
The 27th day of January 2025/Binayak & Jagabandhu
Designation: Personal Assistant
