Orissa High Court
Dukha @ Krushna Behera vs State Of Odisha on 25 September, 2025
Author: Chittaranjan Dash
Bench: Chittaranjan Dash
A IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA No. 326 of 1998
Arising out of the Judgment of conviction dated 25th of November,
(Arising
7, passed by Sri A. P. Das, 2nd Addl. Sessions Judge, Cuttack, in
1987,
S. T. No.78/1996 (6/96),
(6/96) for the
he offence under section 302 and 307 of
the Indian Penal Code, 1860)
1860
Dukha @ Krushna Behera .... Appellant
Mr. Devashis Panda, Advocate
-versus-
State of Odisha .... Respondent
Mr. Aurovinda Mohanty,
Mohanty ASC
CORAM:
THE HON'BLE
HON MR. JUSTICE S. K. SAHOO
THE HON'BLE
BLE MR. JUSTICE CHITTARANJAN DASH
Date of Judgment: 25.09.2025
Chittaranjan Dash, J.
1. This Appeal is directed against the judgment and order
11.1998 passed by the learned 2nd Additional Sessions
dated 25.11.1998 S
Judge, Cuttack in S.T.
S.T Case No.78 of 1996 (6/96), wherein the
Appellant having been found guilty in the offences under Section
302/307 of IPC has been sentenced to undergo imprisonment for
life for the offence under Section 302 of IPC while
while no separate
sentence has been imposed for the offence under Section 307 of
IPC.
2. The brief facts giving rise to the present Appeal are that the
Appellant, being the driver of a Mini Truck bearing Registration
No. OR-05C-1646,
1646, is alleged to have intentionally
intentionally caused the death
of four persons, namely, Alekha Samal, Rajib Narayan Das,
Hrushikesh Rout, and Golakha Chandra Nayak, by crushing them
under the wheels of the said truck, which he drove rashly and
rammed into the footpath in front of certain shops at the market,
where people had assembled for marketing. The further charge
against the Appellant is that he attempted
attempted to commit murder of
Kalia @ Sukanta Patra (P.W.15), Dharua Sahu (P.W.10)
Rabindranath Sahu (P.W.8) and Bula @ Sridhar Behera (P.W.9). It
further appears that the Appellant had married to Kuni Behera
(P.W.11),, but their matrimonial life was strained, owing to which
his wife often stayed in her parental home. The Appellant suspected
that Kalia @ Sukanta Patra (P.W.15), a distant uncle of his
hi wife,
had developed an illicit relationship with her. Despite several
efforts by the Appellant to bring back his wife to the matrimonial
home, the same proved futile, and he attributed this failure to the
alleged interference of P.W.15.. On 30.03.1995, the
th date of
occurrence, the Appellant drove the aforesaid Mini Truck to Pira
Bazar from Cuttack, got down, and made enquiries from some
persons regarding his dispute in securing the return of his wife. At
that time, he came across P.W.15 who was present there,
ther and
abused him alleging that he was responsible for the discord in his
matrimonial life. A quarrel ensued between the Appellant and
P.W.15,, during which the Appellant, in a fit of anger, threatened to
crush P.W.15 under the wheels of the truck and left the spot.
Thereafter, the Appellant drove the truck towards Salipur but soon
returned to PiraBazar
Bazar and, while driving the vehicle at a very high
speed, rammed it into a group of people standing in front of the
shop of one Jyoti Mohapatra @ Chandia, allegedly
alleged targeting
P.W.15,, who managed to jump aside and escaped.
escape . However, the
truck ran over the aforesaid four persons, who died at the spot, and
also caused severe injuries to four others. The Appellant then
abandoned the truck in a nearby field. On the basis of these
allegations, one Prakash Chandra Behera (P.W.19) lodged a written
report on the same day, whereupon Jagatpur P.S. Case No.32 of
1995 was registered on 30.03.1995.
In course of the
t investigation, the police arrived at the spot,
held inquest over the dead bodies, sent them for post-mortem
post
examination, issued
issued injury requisitions for the injured persons,
examined witnesses, seized the vehicle, obtained the M.V.I. report,
apprehended the Appellant,, and upon completion of investigation,
submitted charge-sheet.
charge
3. The plea of the Appellant is one of complete denial
denia and
false allegations. The Appellant also pleaded that on the relevant
day, he was not driving the Mini truck in question but kept the same
in the field whereupon it was seized by the police.
4. To bring home the charges, the prosecution examined
twenty witnesses
tnesses in all. While P.W.1 is the betel shop owner,
situated at Piraa bazaar and occurrence witness, P.W.2 is an
occurrence witness, being a teacher in Madrasa. P.W.3
P.W. is a local
person and is also an eye witness to the occurrence present at the
spot. P.W.4 too is a businessman, having his garage at Pira bazar
and an occurrence witness. P.W.5 is also an occurrence
ccurrence witness so
also P.W.6, P.W.7, P.W.8, P.W.9. P.W.9 and P.W.10 are the injured
witnesses, P.W.11 is the occurrence witnesses, P.W.12 is the
witnessess to the seizure, P.W.13 is the doctor who conducted
autopsy over the dead bodies of Rajib Narayan Dash, Alekha
Samal, Hrusikesh Rout and Golokha Chandra Nayak. P.W.14 is the
witness to the inquest, P.W.15 is Kalia @ Sukanta Kumar Patra, a
distant relative of the wife of the Appellant allegedly to have illicit
affair with the wife of the Appellant, P.W.16 is the scientific
officer, P.W.17 is the Assistant Surgeon who conducted medical
examination in respect to the injured Sridhar Behura, P.W.18 is the
MVI, P.W.19 is a contractor and an occurrence
occurrence witness and P.W.20
is the I.O.
5. The learned trial court, having assessed
assess the evidence found
the Appellant to have driven the vehicle in a rash and negligent
manner intentionally to crush over the persons present in the market
while targeting to do away with the life of P.W.15, based on the
evidence of the eye witness account as well as the circumstances
appearing in the relevant time. The court also held the death of the
deceased to be homicidal in nature.
6. In course of hearing, Mr. Devashis Panda, learned counsel
for the Appellant, assailed the impugned judgment and order and
submitted that the evidence of P.W.15 assumes great importance in
this case, as the Appellant allegedly bore ill feeling towards him on
suspicion of having an illicit relationship with his wife (P.W.11),
who had been staying at her parental house for about a year.
According to Mr. Panda, the testimony of P.W.15 is wholly
unreliable, inasmuch as it finds no corroboration from any other
witness, including the injured witnesses, who were allegedly taken
by him to the hospital. P.W.11, the estranged wife of the Appellant,
admitted that P.W.15 was her agnatic uncle and was casually
visiting her parents' place. However, the Appellant had objected to
his presence. It was argued that the alleged motive for commission
of the crime, namely the supposed amorous relationship
relationship between
P.W.11 and P.W.15, has not been proved, as no other witnesses
including P.Ws.8, 9, and 10 supported the claim of a quarrel
between the Appellant and P.W.15 prior to the incident.
Mr. Panda further submitted that although P.W.15 claimed
to havee received injuries,
injuries but this was not corroborated by any of
the occurrence witnesses, nor has any medical evidence been
adduced to prove the same. None of the eyewitnesses present at the
scene stated that P.W.15 sustained any injury or attributed the
Appellant
llant as the driver of the offending vehicle. Thus, neither the
alleged motive nor the version of P.W.15 can be safely relied upon.
It was argued that the evidence on record indicates that the
Appellant had no intention to cause the death of the deceased
persons,
ersons, who succumbed to the injuries sustained after being hit by
the Mini Truck. Therefore, the charge under Section 302 IPC is not
sustainable. Instead, the Appellant ought to have been charged
under Section 301 IPC, which provides for punishment of culpable
cul
homicide when death is caused to a person other than the one
intended.
Assailing the conviction, Mr. Panda further argued that the
injured witnesses never attributed the accident to the Appellant. He
pointed out that no tyre marks were seized from the
th spot for
comparison with the tyres of the Mini Truck, which was allegedly
used in the crime. He relied upon the decision in Varun Choudhry
Rajasthan reported in (2011) 12 SCC 545,
vs.. State of Rajasthan, 545 wherein it
was held that unless tyre marks are seized from the
t spot and
compared with those of the vehicle, it cannot be conclusively held
that the recovered vehicle was used for commission of the offence.
In the present case, no such comparison was made, and therefore
the use of the Mini Truck by the Appellant is not established. Mr.
Panda also submitted that had P.W.15 really been the target of the
Appellant, he would have at least suffered some injuries. The
absence of any injury on his person renders his version unnatural
and untrustworthy. His conduct in neither
neither reporting the incident
immediately to the police, nor undergoing medical examination,
and remaining untraceable on 03.04.1995, further casts serious
doubt on his testimony.
Placing reliance on the cross-examination
cross examination of the MVI
(P.W.18), who admitted that mechanical failure of the vehicle could
not be ruled out, Mr. Panda contended that the prosecution case is
further weakened. He argued that the evidence makes it apparent
that the Appellant had no intention to cause the death of the four
deceased persons i.e.
i Rajib Narayan Dash, Alekha Samal,
Hrushikesh Rout, and Golakha Chandra Nayak. At best, the
prosecution case is that the Appellant intended to target P.W.15,
which, even if accepted, would attract Section 301 IPC and not
Section 302 IPC.
As regards the conviction under Section 307 IPC, Mr. Panda
submitted that it was based on the alleged injuries sustained by
Rabindranath Sahu (P.W.8), Sridhar Behera (P.W.9), and
Dharinidhar Sahu (P.W.10), as well as P.W.15 who allegedly
managed to escape. However, P.W.8,
P.W.8, though testifying that he had
sustained injuries on his head and ear and was admitted to SCB
Medical College & Hospital, did not speak of P.W.15's presence.
P.W.9 stated that he sustained a fracture in his right leg and was
admitted in the same hospital, but again did not speak of P.W.15's
presence. Both witnesses were declared hostile. The doctor
(P.W.17) proved the admission of P.Ws.8 and 9, but the injury of
P.W.9 was limited to pain over his right knee. No injury report was
ever proved for P.W.15.
According
ording to Mr. Panda, the absence of corroboration
regarding the presence of injury of P.W.15, coupled with the failure
to collect tyre marks from the spot, establishes that P.W.15 is a got-
got
up witness and his testimony is unreliable and as such infirm
evidence,
nce, the conviction of the Appellant cannot stand. Therefore, it
was submitted that the impugned judgment of the learned trial court
is based on no evidence and is liable to be set aside, and the
Appellant is entitled to an acquittal.
7. Mr. Aurovinda Mohanty,, learned counsel for the State, on
the other hand, submitted that the prosecution has clearly
established that the Appellant was driving the offending vehicle,
i.e., the Mini Truck bearing Registration No. OR-05C-
OR -1646, which
crushed four persons to death and caused injuries to four others. He
relied upon the testimony of P.Ws.3, 4, 6, 8, and 15, which,
according to him, unequivocally prove the presence of the
Appellant at the wheel. He contended that P.W.15 is a natural and
trustworthy witness whose presence
presen at Pira Bazar was neither
doubtful nor unexpected. The statement of P.W.15, both in
examination-in-chief
chief and in cross examination,
cross-examination, substantially
corroborates his presence at the scene and his account of the quarrel
with the Appellant. His testimony establishes
establishes that the Appellant,
being enraged during the quarrel, threatened to crush him under the
wheels of the truck, left the place, and soon returned to drive the
vehicle at great speed towards the footpath where P.W.15 and
others were standing. This version,
version, according to Mr. Mohanty, goes
uncontroverted and directly implicates the Appellant as the driver
of the vehicle and the author of the crime.
It was further argued that all the eyewitnesses, including
P.Ws.2, 3, 4, 5, 6, 8, 9, and 15, have consistently
consistently described the
manner and sequence of the occurrence and specifically identified
the Appellant as the driver who drove the vehicle into the footpath,
resulting in multiple deaths and injuries. The prosecution case is
further reinforced by the evidence of P.W.18, the Motor Vehicle
Inspector, who categorically deposed that the offending vehicle had
no mechanical defect and was in good running condition, thereby
ruling out the possibility of accidental failure. According to Mr.
Mohanty, this proves beyond doubt
doubt that the Appellant drove the
truck with the requisite intention to cause the death of P.W.15, and
in the process caused the death of four persons and injuries to
others. Finally,, Mr. Mohanty contended that the testimonies of the
eyewitnesses are cogent, reliable, and consistent with each other
and with the medical and scientific evidence. The cumulative effect
of the evidence leads to the inescapable conclusion that the
Appellant acted with full knowledge and intention, making him
liable for the offence of murder. The learned trial court, therefore,
rightly held him guilty, and no interference with the impugned
judgment is warranted.
8. Having heard the learned counsel for both the Parties, at the
outset, it is necessary to examine the medical evidence in order
or to
ascertain the cause of death of the deceased and the nature of
injuries sustained by the injured witnesses. From the testimony of
P.W.13, Dr. Minati Patnaik, it stands established that four persons,
namely Rajib Narayan Dash, Alekha Samal, Hrushikesh
Hrushikes Rout, and
Golakha Chandra Nayak, died on account of injuries sustained by
them, which were opined to be ante-mortem
ante mortem in nature and caused
by hard and blunt force impact. The doctor further opined that such
injuries were fatal in the ordinary course of nature
nature and could jointly
and severally be occasioned in a case of dashing by a running
vehicle.
In so far as the injured witnesses are concerned, P.W.20, the
Investigating Officer, issued requisition for their medical
examination and obtained the bed-head
bed tickets of P.W.8 and P.W.9.
P.W.17, the Assistant Surgeon in the Accident Unit of the
Orthopaedics Department, SCB Medical College, Cuttack, deposed
that on 30.03.1995, P.W.8 was admitted with complaints of pain in
both knees and the left elbow. He proved the bed-head
head ticket under
Ext.10, showing that P.W.8 remained under treatment as an indoor
patient from 30.03.1995 to 07.04.1995.
Consequently, it
it is significant to note that the defence has
not disputed either the nature of the injuries sustained by the injured
i
witnesses (except in relation to P.W.15) or the death of the four
deceased persons named above. In view of such admitted position,
we consider it unnecessary to burden this judgment with further
elaboration on this aspect, as the fact of homicidal death
d and the
injuries sustained by the injured stand established beyond
controversy.
9. The entire prosecution case rests substantially on the
account of the eyewitnesses. The prosecution examined P.Ws.2, 3,
4, 6, 7, 8, 9, 10, and P.W.15 as occurrence witnesses.
witnesses. However, it is
pertinent to note that P.Ws.2, 3, 4, 6, 8, 9, and 10 did not support
the prosecution case in material particulars and were declared
hostile, thereby necessitating their cross-examination
cross examination by the
prosecution.
10. In this backdrop, the primary issue that arises for
consideration before this Court is whether the death of the deceased
persons was the result of an intentional act on the part of the
Appellant, done with the intention of causing death or of causing
such bodily injury as the Appellant
Appellant knew to be likely to cause
death, or whether the incident was the result of any other
circumstance short of such intention.
11. In order to appreciate the rival contentions and to examine
whether the prosecution has succeeded in proving its case beyond
reasonable
nable doubt, it becomes necessary to advert to the evidence of
the material witnesses,
witnesses as follows -
P.W.2 deposed that he knew the deceased persons, namely,
Alekha Samal, Rajib Das, Hrushikesh Rout, and Golakha Nayak,
but he did not know either the injured Kalia @ Sukanta Patra or the
Appellant.. He stated that the occurrence took place more than a
year back at Jagatpur Peer Bazar. His house being situated at Peer
Bazar, on hearing commotion,
commotion he came to the road and found four
dead bodies lying there, having been crushed by a vehicle. He,
however, expressed no knowledge about how the incident had
occurred. Consequently, the witness was declared hostile by the
learned Public Prosecutor. He denied all suggestions put to him in
relation to the circumstances of the
t case.
P.W.3,, a co-villager,
co villager, stated that he knew the Appellant as
the driver of the Mini Truck bearing Registration No. OR-05C-
OR
1646. He also knew the deceased persons, namely Alekha Samal,
Rajib Das, Hrushikesh Rout, and Golakha Nayak, but did not know
the
he injured Kalia @ Sukanta Patra. He deposed that the incident had
occurred more than a year ago. In the evening, the Appellant came
driving the aforesaid Mini Truck from the Salipur side, swerved to
the side of the road in front of the shop of P.W.1, where
wher the
aforesaid four deceased persons and others were standing, and ran
over them under its wheels. As a result, the deceased persons
succumbed to their injuries and three more persons sustained
injuries in the incident. The deceased and the injured were taken
t to
SCB Medical College & Hospital, Cuttack. Thereafter, the witness
was declared hostile by the learned Public Prosecutor and denied
the suggestions put to him with regard to the circumstances of the
case.
P.W.4 stated that he knew the Appellant but did
d not know
his wife, Kuni. He knew the deceased persons, though he did not
know the injured Kalia @ Sukanta Patra. He runs a garage at Peer
Bazar and explained the occurrence in the same manner as P.Ws.2
and 3, namely that the deceased and the injured were
were standing in
front of the shop of P.W.1 when the incident occurred. They were
later taken to SCB Medical College & Hospital, Cuttack. He added
that he could not say whether Kalia @ Sukanta Patra was present
there, as he did not know him.
P.W.6 stated that he knew the Appellant,, P.W.11-Kuni,
P.W.11 the
deceased persons, and the injured P.W.15. He further stated that
there were differences between the Appellant and his wife Kuni, as
a result of which she had gone to reside at her parental home in
Gopinathpur. On the
the date of the occurrence, he was at the shop of
P.W.1 when the incident took place. He described the occurrence in
the same manner as P.Ws.2 and 3, stating that the deceased and
others were standing in front of the shop of P.W.1. He further
deposed that he had caught hold of the Appellant.. Thereafter, he
was declared hostile by the learned Public Prosecutor.
P.W.7 stated that he knew the Appellant,, who had married
Kuni, the daughter of Mani Behera of their village. He deposed that
Kuni was residing in her parental home due to strained relations
with the Appellant.
Appellant. He did not know Kalia @ Sukanta Patra. He
further stated that the occurrence took place
place more than a year ago at
Pira Bazar in front of the shop of P.W.1. At the relevant time, he
was at his house and came to the spot on hearing commotion. On
arrival, he found four persons crushed under a vehicle in front of
the shop of P.W.1. The vehicle was
was parked in a nearby field on the
right side of the road, and the Appellant had been caught hold of
and detained by local people. He also witnessed the police
conducting inquest over the dead bodies of the deceased, namely
Alekha Samal, Rajib Narayan Das, Hrushikesh Rout, and Golakha
Nayak at SCB Medical College & Hospital, Cuttack. However, he
clarified that he did not witness the inquest over the bodies of
Alekha Samal and Rajib Narayan Das.
P.W.8,, a co-villager,
co villager, deposed that the incident occurred at
about
ut 7.30 p.m. on 30.03.1995 at Pira
P Bazar in front of the shop of
P.W.1. At that time, the deceased persons, namely Alekha Samal,
Rajib Narayan Das, Hrushikesh Rout, and Golakha Nayak, were
standing near the said shop, while P.W.8 was selling vegetables
nearby. The Appellant came driving the Mini Truck from the
Salipur side at a break-neck
break neck speed, ploughed it into the group, and
crushed them under its wheels. In the process, P.W.8 and two others
also sustained injuries. P.W.8 suffered a fracture in both legs, his
left hand, and injuries on the left side of the head near the ear, for
which he was admitted to SCB Medical College & Hospital,
Cuttack. Thereafter, the witness was declared hostile by the learned
Public Prosecutor. In cross-examination,
cross examination, however, he confirmed
c the
registration number of the Mini Truck driven by the Appellant.
Appellant
P.W.9 deposed that he knew the Appellant,, his wife Kuni,
and P.W.15. He stated that the Appellant had disturbances with his
wife, owing to which she was residing at her parental house.
ho On the
date of occurrence, P.W.9 had gone to Pira
P Bazar for marketing,
when the Appellant came driving the Mini Truck from the Salipur
side at a break-neck
neck speed, ran it over the aforesaid persons, and
crushed them under its wheels. While the deceased persons died on
the spot, P.W.9, along with P.W.8, sustained injuries. He suffered
injury to his right leg and was taken to SCB Medical College &
Hospital, Cuttack for treatment.
P.W.10,, an injured witness, stated that he knew the
Appellant and his wife, P.W.11. He corroborated the evidence of
P.Ws.8 and 9 and further stated that he had sustained injury on his
right leg in the occurrence. He too was declared hostile by the
learned Public Prosecutor.
P.W.15 is an eyewitness, whom the Appellant accused of
having
ving an illicit relationship with his wife. He is the agnatic uncle
of the Appellant's wife. In his sworn testimony, P.W.15 stated that
on the date of occurrence, he had gone to Pira
P Bazar, where the
Appellant arrived in a truck bearing Registration No. OR-05C-
OR
1646, parked it in front of the shop of P.W.1, and started hurling
abuses at him in obscene language while accusing him of having an
illicit relationship with his wife. The Appellant then threatened to
kill him and drove away towards Salipur. About ten
ten minutes later,
the Appellant returned, driving the truck at a break-
break-neck speed,
while P.W.15 was conversing with the deceased Rajib Das in front
of the shop of P.W.1. The Appellant drove the truck towards them,
swerving to the extreme left of the road up to the betel shop of
P.W.1, with the intention of crushing P.W.15 under its wheels.
P.W.15, however, managed to jump aside and escaped with minor
injury. In the process, the truck struck and ran over Rajib Das,
Alekha Samal, Golakha Nayak, and Hrushikesh Rout, who
succumbed to their injuries. Rabindra Sahu and two others also
sustained injuries as the accused swerved the truck from the left to
the right side of the road before driving it into a nearby field, where
he stopped the vehicle. P.W.15, along with others present at the
spot, carried the injured persons to SCB Medical College &
Hospital, Cuttack. He further stated that the Officer-in
Officer in-Charge of
Jagatpur P.S. arrived at the spot by about 8:30 p.m., and that one
Prakash Chandra Behera, who was present there, lodged the FIR at
Jagatpur P.S.
12. As rightly argued by the learned counsel for the Appellant,
the culpability of the accused in the present case may, at first blush,
appear to be covered under Section 301 of the Indian Penal Code,
inasmuch as the intention
intention of the Appellant, as alleged, was to cause
the death of P.W.15, but the fatal consequence ensued in respect of
four other individuals. It is therefore necessary to examine the
scope and applicability of Section 301 IPC. For better appreciation,
the provision
rovision is reproduced below:
301. Culpable homicide by causing death of person
other than person whose death was intended.--If
intended a
person, by doing anything which he intends or knows to
be likely to cause death, commits culpable homicide by
causing the death of any person, whose death he neither
intends nor knows himself to be likely to cause, the
culpable homicide committed by the offender is of the
description of which it would have been if he had
caused the death of the person whose death he intended
or knew
ew himself to be likely to cause.
13. The question of culpability under Section 301 IPC must be
approached with care. Superficially identical facts may give rise
either to culpable homicide not amounting to murder or to murder,
depending on the state of mind of
of the accused at the relevant time
and the precise manner in which the statutory tests are satisfied.
Section 301 IPC deals with the situation in which a person,
by doing anything which he intends or knows to be likely to cause
death, causes the death of a person other than the one he intended or
knew himself to be likely to cause. The statutory objective is clear
that thee identity of the actual victim is not decisive of the degree of
the offender's culpability; rather, what is determinative is the
quality of the mens rea with which the act was done and the natural
consequences of the act as known or intended by the actor. In short,
Section 301 operates to "transfer" the legal character of the offence;
the culpable homicide produced by the offender is of the same
description as it would have been had the intended victim died. The
scope of Section 301 is therefore limited and
and specific.
specific It does not
create a new or separate category of homicide, it simply transfers
the malice, as in where an accused does an act with the requisite
intention or knowledge directed at one person but death ensues to
another, the culpability is to be assessed as if the intended person
had been killed. This means that Section 301 does not operate to
lessen the degree of the offence by reason of mistaken identity of
the victim. If, by virtue of the accused's intention or knowledge, the
act falls within the definition of murder under Section 300, then the
fact that some other person and not the intended person dies will not
convert the offence into a lesser form of culpable homicide, the
offence remains murder and punishable accordingly. Conversely, if
thee mental element established is one that falls short of Section 300,
the offender's liability will be measured by the nature of culpable
homicide established.
14. This leads to the necessary probe of the distinction between
"culpable homicide" and "murder" under the Penal Code. Section
299 supplies the statutory definition of culpable homicide, while
Section 300 circumscribes those kinds of culpable homicide which
amount
mount to murder typically by reference to the presence of intention
to cause death. For better appreciation, both the provisions are
reproduced below -
homicide Whoever causes death by
299. Culpable homicide.--Whoever
doing an act with the intention of causing death, or with
wi
the intention of causing such bodily injury as is likely to
cause death, or with the knowledge that he is likely by
such act to cause death, commits the offence of culpable
homicide.
Murder Except in the cases hereinafter
300. Murder.--Except
excepted, culpable homicide
homicide is murder, if the act by
which the death is caused is done with the intention of
causing death, or--or
2ndly.--If If it is done with the intention of causing such
bodily injury as the offender knows to be likely to cause
the death of the person to whom the harm harm is caused,
or--
3rdly.--IfIf it is done with the intention of causing bodily
injury to any person and the bodily injury intended to be
inflicted is sufficient in the ordinary course of nature to
cause death, or--
or
4thly.--IfIf the person committing the act knows that it is
so imminently dangerous that it must, in all probability,
cause death, or such bodily injury as is likely to cause
death, and commits such act without any excuse for
incurring the risk of causing death or such injury as
aforesaid.
15. The statutory language of Section 300 (of course, read with
the exceptions), therefore,
therefore operates as the primary test for whether a
culpable-homicide
homicide-type
type act is to be treated as murder; where that
threshold is crossed the resulting offence attracts the consequences
of murder.
urder. The jurisprudence emphasise that the limbs of Section
300 must be read with precision, for the difference between
culpable homicide and murder is not merely semantic but carries
momentous differences in substantive penal consequence.
16. A fulcral issue in applying Sections 300 and 301 is the
correct understanding and application of mens rea i.e. the subjective
mental element of intention and knowledge. Indian criminal law
treats "intention" and "knowledge" as distinct though related modes
of culpability:: intention signifies a conscious purpose to bring about
a particular consequence, whereas knowledge connotes awareness
that a particular result is likely to follow from the act. The courts
have long recognised that these are not just abstract categories but
b
factual inferences to be drawn from the totality of evidence in the
conduct of the accused before, during and after the act, any overt
threats or declarations, the weapon or means availed and its likely
effect, the speed, direction and targeting of the assault, and other
attendant circumstances. The doctrine of dolus eventualis i.e. 'the
accused foreseeing and reconciling himself to the probable
consequence' has been treated as subsumed within the concept of
"knowledge" for the purposes of Section 300; where
where the accused
appreciated that his act was so imminently dangerous that it must in
all probability cause death, the requisite knowledge for murder may
be inferred.
17. It is also necessary to observe the effect of statutory
exceptions and recognised defences
defences on the interplay between
Sections 300 and 301. The exceptions to Section 300, for instance,
sudden and grave provocation, acts done in good faith in the
exercise of right of private defence, or by consent in some
circumstances, operate to reduce what would
would otherwise be murder
to culpable homicide not amounting to murder. These exceptions
are factual defences and, insofar as they are established on the
materials, they operate irrespective of whether the actual victim was
the intended target or not; transfer
transfer of malice under Section 301 does
not nullify an otherwise available exception. That said, the burden
of proof for an exception lies where the law prescribes, and whether
an exception applies depends on the temporal sequence of events
and on whether there
there was time for the passion to cool, or whether
the force used was proportionate and necessary. Hence, a careful,
fact-sensitive
sensitive evaluation of both mens rea and possible exceptions
is indispensable before any determination that an offence amounts
to murder under Section 302 by reason of Section 301.
18. The Hon'ble Apex Court, in the matter of Ashok Saxena vs.
etc reported in 2025 LiveLaw (SC) 163,
in this regard has further clarified the position of law, as follows -
37. From the perusal of the provision of Section 301
of the IPC, it becomes manifest that Section 301
embodies what the English authors describe as the
doctrine of transfer of malice or the transmigration of
motive. Under the Section, if A intends to kill B, but b
kills C whose death he neither intends nor knows
himself to be likely to cause, the intention to kill C is by
law attributed to him. If A aims his shot at B, but it
misses B either because B moves out of the range of the
shot or because the shot misses the mark and hits some
other person C, whether within sight or out of sight,
under Section 301, A is deemed to have hit C with the
intention to kill him. What is to be noticed is that to
invoke Section 301 of the IPC, A shall not have any
intention to cause
cause the death or the knowledge that he is
likely to cause the death of C. This Section lays down
that culpable homicide may be committed by causing
death of a person whom the offender neither intended
nor knew himself to be likely to kill. If the killing takes
tak
place in the course of doing an act which a person
intends or knows to be likely to cause death, it must be
treated as if the real intention of the killer had been
actually carried out.
38. Having noticed salutary principles on which
Section 301 of the IPC is based, it would be instructive
to refer to law on the point as laid down by this Court.
In Gyanendra Kumar v. State of U.P.,, reported in AIR
1972 SC 502 the accused was deliberately trying to
shoot at a fleeing man who had criticized his father in a
School Committee Meeting, but unfortunately, his own
maternal uncle came in between him and the intended
victim and thus got killed. This Court has held that the
act of the accused was nothing but murder under
Section 302 read with Section 301 of the IPC.
IPC
39. In Hari Shankar Sharma v. State of Mysore
reported in 1979 UJ 659 (SC), the intention of the
accused was to kill prosecution witness No. 15 by firing
a shot at him, but the accused shot the fire and killed the
deceased. A plea was raised before this Court that the
appellant would be guilty of offence under Section 304- 304
A or 307 of the IPC. While negativing the said plea, this
Court has held as under:
"This appeal under the Supreme Court (Enlargement
of Criminal Appellate Jurisdiction) Act is directed
against the judgment of the Mysore High Court
convicting the appellant under Section 302 and
sentencing him to imprisonment for life. Detailed
facts of the case have been narrated in the judgment
of the High Court and it is not necessary for us to
reproduce the same here. The main allegation against
reproduce
the appellant was that he had shot the deceased
Nazirunnissa and Killadher. So far as the facts are
concerned both the Sessions Judge and the High
Court have concurrently found that the case was fully
proved. The
The Sessions Judge was of the opinion that
the first appellant wanted to kill PW. 15, but as PW.
15 was not available at that time, Nazirunnissa come
in between and she was shot, therefore the appellant
could be guilty of an offence under Section 304(A) or
under Section 307 IPC. This view of the learned
Sessions Judge was legally erroneous as rightly
pointed out by the High Court. Section 301 furnishes
a complete answer to the view taken by the Sessions
Judge. It is obvious that the appellant has the intention
intenti
to kill PW.15 and if with this intention, he kills
somebody also, he is undoubtedly guilty of
committing murder. There is evidence of PWs. 13, 14
and 15 to show that A.1 fired that shot and killed the
deceased. There is no escape from conclusion that the
th
appellant committed an offence under Section 302 of
the IPC. In these circumstances, the High Court was
right in correcting the error of law committed by the
Learned Sessions Mr. Udayarathnam, tried to bring
the case of the appellant within the ambit of Section
304(a) or Section 307 but on the fact found it is not
possible for us to accede to her contention. For the
reasons given above, there is no merit in the appeal,
which is accordingly, dismissed."
40. In Jagpal Singh v. State of Punjab reported in
AIR
IR 1991 SC 982: 1991 CrLJ 597, appellant Jagpal had
shot at Surjit Kaur even though he aimed at only Kapur
Singh. After applying doctrine of transfer of malice as
contemplated under Section 301 of the IPC, this Court
has held that Jagpal had made himself punishable
punishable under
Section 302 of the IPC.
41. In Abdul Ise Suleman v. State of Gujarat
reported in 1995 CrLJ 464, it was the case of the
prosecution that the accused had fired freely towards
the fleeing complainant party and the first shot had
injured one person whereas second shot had resulted
into death of ten year old son of the complainant. It was
noticed that
that firing was resorted to in a commercial
locality. The Sessions Court had acquitted the accused,
but acquittal appeal was allowed by the High Court and
the appellant was convicted under Section 302 read
with Section 301 and other provisions of the IPC. It was
submitted before this Court that the facts and
circumstances of the case and evidence led by the
prosecution did not establish that the appellant had any
intention to commit murder of an innocent boy aged ten
years with whom there was no question of having
having any
enmity or any occasion to take a revenge. According to
the learned Counsel of the appellant, even from the
evidence, it was possible to hold that such death of the
boy was absolutely unintentional and at best it could be
held that such firing was a rash and negligent action on
the part of the appellant. It was argued by the learned
Counsel of the appellant that act committed by the
appellant was not murder under Section 302 read with
Section 301 of the IPC as held by the High Court, but
was an offence
offence under Section 304A of the IPC.
Negativing the said contention, this Court has held that
gun was not fired in the air just to frighten the
complainant and his companions, but the gun was fired
by the appellant towards fleeing person even when by
the first
rst shot one of such person was injured. According
to this Court, such firing was resorted to in a locality
where there were number of shops and provision of
Section 301 of the IPC was clearly attracted in the facts
and circumstances of the case. Ultimately,
Ultimately, the
conviction of the appellant under Section 302 read with
Section 301 of the IPC was upheld by this Court.
42. In view of the principles laid down by this Court
in above quoted decisions, it is evident that even if it is
held for the sake of argument that the appellant had no
intention to cause death of the deceased, it will have to
be held that doctrine of transfer of malice, as
contemplated under Section 301, is applicable to the
facts of the present case and that the appellant would be
guilty under Section 302 of the IPC.
19. In view of the above decision, to
to sum up the doctrinal
position for application to the present appeal,
appeal Section 301 ensures
that an accused cannot evade the legal consequences of an intention
or knowledge directed at one person simply
simply because another person,
by fortuitous circumstance, becomes the victim; but Section 301
does not itself create culpability out of nothing; it operates only
when the precursory mental element i.e. intention or knowledge of a
kind that would make the act murder under Section 300 is
established.
20. How these principles operate in the context of Section 301
is plain in principle, apropos, where the accused, with an intention
to kill or with knowledge that his act was likely to cause death in
the sense used in Section 300, directs his act towards A but the act
results in the death of B, the mens rea being the moving force of the
offence is transferred to B and the offence retains the quality it
would have had if A had died. Thus, the court's exercise is a single,
single
integrated inquiry into (i) the mental element of the accused at the
time of the act (did he intend death or know the act to be likely to
cause death?), and (ii) the physical act and its consequences (was
death caused and to whom?). If the answer to (i) satisfies the
criteria of Section 300, the conclusion under Section 301 will be
that the offender is guilty of murder just as he would have been had
the intended victim died. Conversely, if the mens rea established is
of a lesser grade, for example negligence,
negligence, rashness or a lack of
knowledge that the act was likely to cause death, then Section 301
cannot be invoked to upgrade the offence to murder. The evidence
must, therefore, be scrutinised to determine not only who was
killed, but what the accused intended
intended or knew at the moment he set
his hand to the act.
21. We find it pertinent to clarify here the
the distinction between
an accidental death and a death caused by transfer of malice under
Section 301 IPC is of considerable significance. In cases of
accidental death,
ath, the act of the accused lacks the essential mens rea,
rea
as in there is no intention to cause death, nor knowledge that death
is a likely consequence. The fatality occurs as an unintended result
of negligence, rashness, or sheer chance, and liability, if any, is
confined to the lesser offence of causing death by negligence under
Section 304A IPC. From the perspective of the victim, an accidental
death is one which occurs without the intervention of intention or
method.. In such a case, the victim is simply at the wrong place at
the wrong time, and the fatality is the result of negligence, rashness,
or an unforeseen mishap. Such deaths are generally regarded as
"accidental" in law and most commonly arise in the context of
insurance claims, motor vehicle compensation
compensation proceedings, or
statutory reliefs, where the focus is on compensation rather than
criminal culpability.
In contrast, death by transfer of malice under Section 301
IPC is conceptually distinct. Here, the act is committed with the
requisite homicidal mens rea, an intention to cause death, or to
cause such bodily injury as is sufficient in the ordinary course of
nature to cause death, or at the very least, knowledge that death is a
likely consequence. If, by fortuitous circumstance, the actual victim
turns
urns out to be someone other than the intended target, the law
"transfers" the culpability to the person killed, treating the homicide
as if it were committed against the intended victim. Thus, while
accidental death is marked by the absence of mens rea and
an is largely
addressed in compensatory regimes, death by transfer of malice is
rooted in intention or knowledge and carries the full penal
consequences of murder under Section 302 IPC where the
requirements of Section 300 are satisfied.
22. Coming to the culpability
culpability of the Appellant in the present
case, the central issue is whether his conduct falls within the
definition of "murder" as set out in Section 300 of the Indian Penal
Code. On a careful scrutiny of the materials, we are persuaded to
hold that the act of the Appellant is squarely covered under the third
clause of Section 300 i.e. 3rdly. The clause provides that culpable
homicide is murder if it is done with the intention of causing bodily
injury to any person, and the bodily injury intended to be inflicted
inflic is
sufficient in the ordinary course of nature to cause death.
death The
emphasis here is on the intention to cause a particular bodily injury
coupled with the sufficiency of that injury to cause death in the
ordinary course of nature.
23. In the present case, it is established by cogent evidence that
the Appellant, following a quarrel with P.W.15 whom he suspected
of having an illicit relationship with his wife (P.W.11) threatened to
crush him under the wheels of his truck. About ten minutes
minute
thereafter, he returned, driving the truck at a very high speed,
swerved it towards the group of people standing in front of the shop
of P.W.1, and in the process, ran over four individuals, causing their
instantaneous death. The evidence of P.W.15, supported
supported by the
hostile but partial admissions of other witnesses, establishes that the
act was not an accident but a deliberate manoeuvre aimed at
inflicting bodily harm of the most grievous kind, namely running
heavy vehicle wheels over human bodies. It requires
requires no elaboration
to state that such an act, by its very nature, is sufficient in the
ordinary course to cause death. Thus, the requirement of Clause
3rdly is satisfied that the Appellant intended the bodily act, and the
bodily injury caused was such as would inevitably lead to death.
Learned counsel for the Appellant, Mr. Panda, had argued
that even if the Appellant harboured animosity towards P.W.15, the
death of the other four persons was unintended, and at best the case
would fall under Section 301 IPC, making the offence one of
culpable
pable homicide not amounting to murder. He emphasised that
P.W.15 himself did not sustain any serious injury and that the
hostile witnesses did not attribute rash or intentional conduct to the
Appellant. On the other hand, learned counsel for the State, Mr.
Mr
Mohanty, contended that the act of the Appellant clearly reveals an
intention to cause bodily injury of such severity that death was a
certain consequence. He highlighted that the accused had threatened
P.W.15 in precision with the mode of assault verbatim
verbat and had
thereafter executed the said threat by driving the vehicle into the
crowd. According to him, the absence of injury on P.W.15 is
inconsequential, for Section 301 ensures that the liability for murder
is transferred to the actual victims, and once the mental element is
shown, the identity of the person killed is immaterial.
24. Having considered the rival submissions, and the proper
application of the relevant provisions, we are unable to accept the
contention of the defence that the offence stands reduced
reduced to mere
culpable homicide not amounting to murder. The Appellant's act of
driving a heavy truck at high speed directly into a group of people
after having issued a threat to crush P.W.15 under its wheels
evinces an unmistakable intention to cause such bodily injuries
injur
sufficient in the ordinary course of nature to cause death. That the
intended victim escaped is of no avail to the Appellant, for Section
301 makes him equally culpable for the deaths of the others who
actually sustained the injuries. Therefore,
Therefore, the Appellant's conduct is
covered within Clause 3rdly of Section 300, and the offence made
out against him is murder punishable under Section 302 IPC.
25. With regard to the conviction of the Appellant under
Section 307 IPC, learned counsel for the Appellant,
Appellant, argued that the
essential ingredient of an "attempt to murder" is absent, inasmuch
as P.W.15, the alleged target, escaped without sustaining any
serious injury, and none of the injured witnesses attributed their
injuries to an attempt directed against
against him. It was also contended
that there is no medical evidence to support the claim that P.W.15
suffered any hurt. On the other hand, learned counsel for the State
contended that the act of the Appellant in driving a heavy vehicle
directly into a group of
of persons after threatening to crush P.W.15
under its wheels constitutes a clear attempt on his life, and the
survival of the intended victim cannot absolve the Appellant of
liability under Section 307.
The law under Section 307 IPC is well settled,
settled, that it is not
the injury, but the intention or knowledge coupled with the overt act
which determines liability under the circumstances of the case.
case
Once the accused, armed with the requisite mens rea, directs his act
towards the victim in a manner sufficient to cause death, the attempt
is complete regardless of whether the intended victim survives
unhurt. Herein,, the prior threat, the deliberate act of driving the
truck into the crowd where P.W.15 was standing, and the fatal
injuries caused to others while executing
execu that modus,
modus leave no
doubt that there was an attempt to cause the death of P.W.15. The
absence of medical corroboration of injury on him is of no
consequence. Moreover, P.W.8 is an injured witnesses who
implicated the Appellant driving a mini truck from
om Salipur side in
breakneck speed, not only crushed the deceased persons under the
wheels of the truck but also caused injuries to him and others. The
doctor (P.W.17) treated P.W.8 in the Accident Unit, Dept. of
Orothopaedic of SCBMCH, Cuttack where he was
was admitted on
30.03.1995 and discharged on 02.05.1995 as per the Bed Head
ticket (Ext.10). We, therefore hold that the conviction of the
Appellant under Section 307 IPC is legally tenable.
26. Furthermore, Mr. Panda argued that this circumstance
seriously undermines
rmines the prosecution case, as the hostile witnesses
did not attribute any overt act to the Appellant or support the
presence of P.W.15 at the scene. Mr. Mohanty, for the State,
however, argued that hostile testimony does not efface itself from
the record and that the Court is entitled to rely upon such parts of
the testimony as find corroboration in other reliable evidence.
It is apparent that a number of eyewitnesses, including
P.Ws.2, 3, 4, 6, 8, 9, and 10, were declared hostile. However,
among the hostile
ile witnesses, there are consistent admissions as to
the presence of the Mini Truck at the spot, the deaths caused by its
running over the victims, and the presence of the accused at the
scene. These admissions, coupled with the testimony of P.W.15, the
medical
dical evidence and the evidence of MVI, provide sufficient
corroboration to sustain the prosecution case. Therefore, the hostile
nature of certain witnesses does not detract from the overall
reliability of the prosecution evidence.
27. As regards the argument advanced on behalf of the
Appellant that mechanical failure of the vehicle could not be ruled
out. The learned counsel for the Appellant argued that in the
absence of seizure of tyre marks or conclusive mechanical
inspection, the prosecution case of intentional
intentional homicidal use of the
truck is doubtful.
Herein, the
he mere suggestion that mechanical failure "could
not be ruled out" does not, by itself, displace the positive evidence
of deliberate conduct, particularly in light of the eyewitness account
and the preceding
receding threat issued by the Appellant.. The defence of
mechanical failure is speculative, unsupported by material
evidence, and stands contradicted by the circumstances and ocular
testimony. P.W.18, the M.V.I. has specifically stated that there was
no mechanical failure to the vehicle contributing to the accident.
The brake system of the vehicle was intact at the time of
examination. The bulbs of the Head lights of the vehicle were
damaged duee to collusion. The hand brake and steering of the
vehicle were in order. Thus, the failure to apply brakes by the
Appellant, who was a driver by profession and driving the truck
towards the extreme left of the road to the betel shop of P.W.1 and
crushing so many persons under the wheels speaks a volume against
his conduct, intention and knowledge.
28. In view of the foregoing discussion, we are of the
considered opinion that the conviction of the Appellant under
Section 302 IPC is well-founded,
well as his act falls
ls squarely within
Clause 3rdly of Section 300 IPC and stands further attracted by the
operation of Section 301 IPC. The deaths of the four victims were
the direct result of the deliberate and intentional act of the
Appellant, and the finding of guilt recorded
recorded by the learned trial
court under Section 302 IPC warrants no interference.
We also find that the conviction of the Appellant under
Section 307 IPC is legally sustainable, inasmuch as his overt act,
preceded by a clear threat to P.W.15, constituted an attempt to
cause his death, though the intended-victim
intended victim escaped which also
caused injuries to P.W.8 for which he was treated as an indoor
patient for more than a month.
month. However, since the Appellant has
already been sentenced to undergo imprisonment for life under
Section 302 IPC, no separate sentence under Section 307 IPC is
called for and the same has been rightly not imposed by the learned
trial court.
29. As a result,
result, the conviction and sentence of the Appellant
passed by the learned 2nd Additional Sessions Judge,
udge, Cuttack in S.T.
Case No.78 of 1996 vide judgment and order dated 25.11.1998
under Section 302 IPC are hereby confirmed,
firmed, along with the
conviction under Section 307 IPC,
IPC without separate sentence.
30. The Appellant, being on bail, is directed to surrender
surrende before
the learned trial court within a period of four weeks, to serve out the
remainder of his sentence, failing which the learned trial court shall
take necessary steps to secure his custody in accordance with law.
Accordingly, the Appeal is hereby dismissed.
(Chittaranjan Dash)
Judge
I, Agree
(S. K. Sahoo)
Judge
Bijay
Location: HIGH COURT OF ORISSA
