Orissa High Court
Sibananda Chhuria vs State Of Odisha on 24 July, 2023
Author: S.K. Panigrahi
Bench: D. Dash, S.K. Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA Nos.1 of 2012 & 149 of 2016
(From the judgment of conviction and order of sentence dated
07.12.2011 passed by the learned Sessions Judge, Bargarh in
C.T. Case No.82 of 2009)
(In CRLA No.1 of 2012)
Sibananda Chhuria .... Appellant
-versus-
State of Odisha .... Respondent
Advocates appeared in the case:
For Appellant : Mr. D.P. Dhal, Sr. Adv.
-versus-
For Respondent : Mr. S. K. Nayak, AGA
(In CRLA No.149 of 2016)
Tian @ Atmaram Chhuria .... Appellant
-versus-
State of Odisha .... Respondent
Advocates appeared in the case:
For Appellant : Ms. Gitanjali Majhi, Adv.
-versus-
For Respondent : Mr. S. K. Nayak, AGA
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR pg. 1
Designation: Assistant Registrar-cum-Senior Secretary
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 24-Jul-2023 18:08:40
CORAM:
MR. JUSTICE D. DASH
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-04.07.2023
DATE OF JUDGMENT:-24.07.2023
Dr. S.K. Panigrahi, J.
1. In this CRLA, both the convicts/Appellants challenge the judgment of conviction and order of sentence 07.12.2011 passed by the learned Sessions Judge, Bargarh in C.T. Case No.82 of 2009, whereby the Appellants were convicted and sentenced to undergo imprisonment for life for commission of offence under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as "the I.P.C." for brevity").
I. CASE OF THE PROSECUTION:
2. Bereft of unnecessary details, the case of the prosecution, in short, is that around 12.30 a.m. in the night in between 14/15.12.2008 one Gopalji Mahana of village Andhanpali presented a written report at the spot in the village Andharipali alleging therein that around 10pm on 14.12.2008 being woken to the voice of the accused persons those were loudly shouting at someone, he came out from his house and moved towards Bedipada chowk to have a glimpse of the matter. At that time Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 2 Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 he noticed an electric bulb was glowing in the grocery shop of Madhu Sahoo and a person was standing on the verandah of the shop. At that time accused Tian alias Atmaram Chhuria (Appellant No.2) came running shouting loudly and he was armed with a sword. He was also accompanied by the Appellant No.2. Seeing the persons those who were standing in the verandah of Madhu Sahoo's shop. It is stated that the appellant directed the other accused to assault him. All on a sudden accused Tian alias Atmaram Chhutia struck the person with a sword in the neck making him crash to the floor. The said Gopalji Mahana was watching the scene standing on the betel shop of Padmalochan. Everything was clearly visible by means of the light emitting from the bulb in the verandah of Madhu Sahu shop. At that time somebody shouted that Tian alias Atmaram Chhuria has already killed Daitary. Hearing this, he called out one Dayasagar and Dayanidhi to probe into the same. Thus, with the help of Dayasagar and Dayanidhi the residents of that locality shifted Daitary to VSS Medical College in a van. Half an hour later, Dayasagar intimated over phone that Daitary has succumbed to the injury.
3. On receipt of this information, one H.K.Sethi- P.W.14 the then A.S.I. of Police attached to Attabira P.S. proceeded to the spot along with J.S.I.-J.K.Mohanty. He entered this fact in the Station Signature Not Verified pg. 3 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 Diary vide Entry No.324 dated 14.12.2008 and on receipt of the report he stated investigation of the case. On return to Attabira P.S. P.W.14 registered P.S. Case No.214 under Section 302/34 of the I.P.C. and in absence of the I.I.C. he took up investigation. II. SUBMISSION OF THE APPELLANT IN CRLA NO.1 OF 2012:
4. Learned Counsel for the Appellant strenuously argued that the Appellant is innocent. The plea of the defence is one of complete denial and false implication. The specific case/plea of the defence as it borne out from the statement of the accused under Section 313 of the Cr.PC. is that he (accused) is in no way connected or concerned with the death of the deceased. He had further deposed that he cannot say who has killed the deceased, however, he was not involved in the incident.
5. Learned Counsel has submitted that the trial Court should have reached at a conclusion that the appellant is not at all liable for the offence under section 302 of the Indian Penal Code with the aid of Section 34 of the Indian Penal Code taking into consideration the judicial pronouncement to the effect that mere presence with the other accused at the place of occurrence is not indicative of sharing of common intention with other accused.
6. He has submitted that the trial Court should have taken into consideration against the effective point to the effect that Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 4 Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 incriminating circumstances have not been asked to the appellant during his examination under section 313 of the Code of Criminal Procedure. In absence of any explanation by the accused to a circumstance which has been put to him cannot be taken note of or utilized against him to reach at a conclusion that he is liable along with the main accused in aid of Section 34 of the Indian Penal Code.
7. Learned Counsel further contended that if at all, the accused should be charged under culpable homicide not amounting to murder. He submitted that P.Ws have stated in their respective deposition that there was quarrel between the accused and the deceased on the spot and both had consumed liquor. Therefore, the attack on the deceased by the accused was not premeditated, rather, it was sudden and in the heat of the moment.
III. SUBMISSIONS OF APPELLANT IN CRLA NO.149 OF 2016:
8. Learned Counsel for the Appellant has submitted that the learned Trial court should have taken into consideration against the effective point to the effect that incriminating circumstances have not been asked to the appellant during his examination under Section 313 of the Code of Criminal Procedure. In absence of any explanation by the accused to a circumstance which has been put to him cannot be taken note Signature Not Verified pg. 5 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 of or utilized against him to reach at a conclusion that both have committed murder of the deceased.
9. Learned Counsel for the Appellant No.2 submitted that the trial court should have taken note of the fact that there are contradiction among the evidence of eye witnesses as well as among the post occurrence witnesses and also the evidence of doctor.
10.Learned Counsel for the Appellant has submitted that even if at all the version of eye witness completely accepted, and then also it is not coming from the allegation that the accused persons have any intention to kill the deceased. The genesis of crime is shown the accused had a tussle with Jubraj Sahu / Sribatsa Sahu, how the present deceased has been victimized by the accused, it is not coming from any one of the prosecution witness, and in such a doubtful situation learned trial court held that the murder of the deceased has been committed by the present appellant in completely illegal appreciation of the facts and law and as such liable to be set aside.
11.Learned Counsel for the Appellant has submitted that the prosecution has miserable failed to establish its case beyond all reasonable doubt, but learned trial court has instead of Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 6 Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 discarding the same, relied upon such unreliable evidence and made it the ground of convicting.
IV. SUBMISSIONS OF THE STATE/ RESPONDENT:
12. Learned Counsel for the State submitted that both the accused have common intention to commit the murder for which they returned to the same place bringing out a sword with which the deceased was murdered. At the end of the first phase of the occurrence they were resolved to see the deceased and other opponents on their return after a while. In fact they returned with the fateful sword and caused death of the deceased by striking him.
13. He has further submitted that the evidence of eye witnesses is very consistent. Number of eye-witnesses have depicted the entire occurrence from the beginning till the end. Minor discrepancies here and there or contradictions with their earlier statement to police not very much material should not be banked upon to draw negative inferences. The injuries, the death and the assault have been flawlessly established. Principle of common intention is very much applicable to accused Sibananda for which he is also liable for commission of the alleged crimes. In addition to liability of both accused persons for the offence committing murder of the deceased Daitari Mahana punishable under Section 302/34 of the I.P.C Signature Not Verified pg. 7 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 They are also liable for voluntarily causing simple hurt to Dayasagar Mahana punishable under Section 323/34 of the I.P.C.
14. Learned Counsel for the State submitted that from the unassailed testimony of the eye witnesses i.e. P.Ws which finds ample corroboration with each other coupled with the medical evidence i.e. the evidence of the doctor, it can be safely concluded that, none else but the accused is the author of the injuries found on the body of the deceased.
V. COURT'S REASONING AND ANALYSIS:
15. Heard both the parties and went through the judgment of the Trial Court. After extensively perusing the documents adduced by the prosecution and the depositions of the witnesses, this Court is of the view that there are two points of determination in the present case:
i. Whether the death of the deceased is homicidal in nature?
ii. Whether the prosecution has managed to prove beyond reasonable doubt that the act of the appellants with common intention led to the death of the deceased?
iii. Whether the act of the appellant was premeditated and with an intention to cause the death of the deceased?Signature Not Verified Digitally Signed
Signed by: BHABAGRAHI JHANKAR pg. 8 Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 VI. Whether the death of the deceased is homicidal in nature?
16. P.W.8 (Medical Officer) has conducted Post Mortem of the deceased as well as gave his opinion on the linking of the external injuries found on the dead body with the weapon of assault. There was a 'chop wound' on the left side between the face and neck measuring 18 cms, depth of the injury was 5 cms. Besides there was abrasion. All the injuries were antemortem in nature. The chop wound is homicidal in nature which according to the opinion of P.W.8 might have been caused by a sharp cutting weapon with moderate to heavy impact.
17. Death is due to shock and haemorrhage resulting from the cut injuries to the blood vessels of neck. Ext.9 is the Post Mortem report. Regarding opinion of P.W.8 on the weapon of offence basing upon a subsequent police requisition dated 09.01.2009, the injuries described as chop wound as per the Post Mortem Report is possible by the seized weapon of offence. Ext.10 is the opinion of P.W.8 and the weapon of offence. The said weapon of offence was identified by P.W.8 in the court which has been earlier marked M.O.IV to IX. According to P.W.8 during his re- examination M.OIV is the weapon of offence which he has examined on police requisition and gave opinion as per Ext.10. Therefore, there is no doubt that the death of the deceased was Signature Not Verified pg. 9 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 homicidal in nature doctor was not examined by the prosecution.
VII. Whether the prosecution has managed to prove beyond reasonable doubt that the act of the appellant led to the death of the deceased?
18.The case of the prosecution is primarily based on the depositions of the eye witnesses P.W. 4, 5, 9, 11 and 12 and other post occurrence witnesses.
19.P.W.14 (I.O.) seized some incriminating items like the wearing apparel of the deceased on production by the escort party vide Ext.7. The wearing apparel of Dayasagar Mahana were seized who was in the midst of the scuffle leading to the fatal assault and he who resisted a second blow attempt by means of deadly sword and transacted injuries in the process. Ext.2 is the seizure list in respect of his wearing apparel. He also seized the wearing apparel of accused Tian @ Atmaram Chhuria vide Ext.16 suspectedly bearing blood stain. While he arrested Tian @ Atmaram Chhuria the other accused Sibananda Chhuria surrendered in Court. With this back- ground and at this juncture it is apt to turn to the evidence of witnesses who were right in the middle and who reached after the furious and fatal blow and also those who have somehow or other been involved.
Signature Not Verified Digitally Signed
Signed by: BHABAGRAHI JHANKAR pg. 10 Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40
20.P.W.5 (Dayasagar Mahana) is the eye witness whose evidence on this first phase of the occurrence which is attributive to the intention of the accused persons is worth referring to at this moment. He stated that he went out of the house in search of his deceased brother and while returning to the house he saw both the accused persons alongwith Balaram Bhoi heading towards Bedi chowk passing in front of their house. Just in front of the house of Jubaraj Sahu they started to hurl abuses naming both Jubaraj and Sribatsa Sahu. At this time P.W.5 was standing in the verandah of his house and from there he could notice Umakanta son of Jubaraj Sahu and Sanjaya Sahu. The son of Jubaraj's brother came out of their house and requested the accused persons to refrain from abusing their elders but the accused persons did not withdraw from abusing them which finally led to a brawl. Later, he could see Umakanta and Sanjaya returning back and while he was waiting for the deceased to come back he started proceeding ahead near the shop of Madhu. He saw both the accused persons coming towards Bedi chowk, Tian @ Atmaram armed with a sword uttering filthy references. Daitari was standing in the verandha of Madhu's shop and seeing him accused Sibananda exhorted by snarling at Tian instead of assaulting what the hell he was watching and then came the fatal blow. When P.W.5 resisted a Signature Not Verified pg. 11 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 second blow by show of his left hand he also sustained a cut injury on his left palm. At this time Santanu reached there and while both P.W.5 and Santanu were attempting to snatch out the sword, Tian sustained injury on his right palm. Accused Tian also sustained injury.
21.P.W.5 is an eye witness right from beginning so far as the first phase of the occurrence is concerned. He has seen the preceding action of the accused persons abusing Jubaraj and Sribatsa Sahu stressing on continuation liquor trade in the village. Both P.W.4 and P.W.5 have depicted immaculate ocular account of the alleged incident right from the beginning till the end. Both have stated after the first blow by sword Daitari fell down bleeding profusely, the second blow was resisted causing injury to the left palm of P.W.5. His condition was extremely critical for which he was immediately shifted to Burla.
22.P.W.11 is Purna Chandra Mahana. He is also an eye witness.
Firstly he saw the accused persons loudly abusing Jubaraj Sahu and Sribatsa Sahu in filthy language while Balaram Bhoi was beseeching them not to use such unparliamentary language in public. Both of them were banging Jibaraj and Sribatsa against abolition of Bhati trade of liquor from their village. At this time Umakanta and Sanjaya intervened and as the accused persons Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 12 Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 did not abide by them both of them pushed them towards the shop of Madhu Sahu. 5 to 10 minutes later both came back from the direction of their house Tian armed with a sword while Sibananda followed him. Sibananda seeing Daitari commanded Tian and accordingly Tian dealt the fatal blow. Similar version has been deposed by most other witnesses including the informant himself i.e. P.W.9 (Gopalji Mahana). He had narrated the entire scene of assault which led to the death of his brother Daitari Mahana. The sword blow by Tian on the exhortation of other accused Sibananda sent the deceased gasping finally to the end of his life. Samir Sahu (P.W.6), Umakanta (P.W.10) who had retired back home just before the fatal assault arrived the scene while the deceased was Struggling near the shop of Madhu profusely bleeding with cut injury on the left side of his neck. Santanu Mahana, the son of the informant Gopalji Mahana is another eye-witness who has narrated all the naked details of the way both the accused put an end to the life of Daitari Mahana. The evidence of these witnesses besides being quantitative is very much consistent and, therefore, will not lack in quality.
23.P.W.4 has deposed that before the assault he alongwith Purna Chandra Mahana (P.W.11) while proceeding towards the grocery shop of Madhu Sahu had the occasion to get brushed Signature Not Verified pg. 13 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 across with heated flurry of words in angry mood between the accused persons on one side, and Umakanta Sahu, Sanjya Sahu on the other. The accused persons were boiling with wrath for both Umakanta and Sanjaya Sahu alongwith Balaram were asking them to refrain from their conduct. The accused persons at that time were declaring their challenge to see how Jubaraj Sahu father of Umakanta and his brother Sribatsa will be able to stop trading of liquor in their village. Umakanta, Sanjaya and Balaram in their attempt to dissuade the accused persons from their challenging mood managed to escort them back till the grocery shop of Madhu Sahu. The accused persons got furious on their intervention and it is accused Sibananda who threatened Umakanta and Sanjaya saying that both will see them on their return after a while. This has probably sparked the deceased Daitari to action for which he also asked the accused persons not to abuse Sanjaya and Umakanta but the accused persons ran away towards their 'pada' to execute their threat that they will see all of them.
24.P.W.11 Purna Chandra Mahana) and P.W.12 Santanu Mahana) are the eye witnesses including P.W.4 (Pramod Kumar Mahana), P.W.5 (Dayasagar Mahana), P.W.9( Gopalji Mahana) have eye witnessed the alleged assault though carried out by accused Atmaram on the direction of Co-accused Sibananda. Signature Not Verified Digitally Signed
Signed by: BHABAGRAHI JHANKAR pg. 14 Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 All of them have categorically stated about the exhortation by accused Sivananda who ordered the other accused for giving the sword blow which is thus a clear manifestation of his intention common with other accused by whom the deceased was assailed. There may be minor contradictions in the evidence of so many eye witnesses including other post occurrence witnesses. But these contradictions can hardly shake the substratum of the prosecution case. Accused Sivananda can be attributed common intention with that of the actual assailant to cause the murder of the deceased.
25.P.W.2 (Mithun Mahana) is the proverbial post-occurrence witness who reached the spot soon after the fatal blow being attracted to a sudden scream of voices. The deceased was already taken to the hospital. However, it came to his notice there that the deceased has been injured being assaulted by accused duo by means of sword. He is a witness to the seizure vide Ext.3 of a pair of chappal belonging to the deceased which was lying scattered around the spot. He identified the seized chapal being exhibited the same in the Court vide M.O.III. He stated that just thereafter Santanu Mahana, (P.W.12) son of the elder brother of the deceased produced a sword divulging that the accused persons assaulted the deceased using the same. He Signature Not Verified pg. 15 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 could find blood stain on the sword which was seized by police vide Ext.4.
26.P.W.3 is one Suresh Sahu. He is a witness to the seizure of the chapals of both the accused persons including the sword of accused Tian @ Atamram Chhuria. He is also a witness to the seizure of wearing apparel of the deceased vide Ext.7/2, his signature. He identified the wearing apparel of the deceased during his examination in the court which has been marked M.O.V to IX. Now P.W.4 (Pramod Kumar Mahana) is an eye witness directly to the occurrence.
27.The principle underlying Section 34, I.P.C is that if two or more persons intentionally do a thing jointly it is just the same as if each of them had done it individually. In the present case the deceased was standing on the verandah in the grocery shop when the accused persons rolled back equipped with sword to execute the ultimatum given by them minutes before that they would see whoever comes, their way. Thus Sibananda howled on Tian what he was watching and ordered him to charge Daitari. The fatal sword blow landed on Daitari who sustained a cut injury extending from his neck below the ear towards the cheek, Daitari crashed down in the impact of the dreadful blow. So in this case basing on the evidence on record regarding both the phases through which the alleged murder Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 16 Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 took place, 'Common intention' is safely attributable to the exhorting accused Sivananda Chhuria.
VIII. Whether the act of the appellant was premeditated and with an intention to cause the death of the deceased?
28. With regards to the second issue, the prosecution witnesses i.e. P.Ws 4, 5, 9, 11 and 12 have not been able to provide whether there was any kind of existing quarrel between the two parties. In addition to this, the prosecution has not established that the act of the accused shall not fall under the Exception 4 of Section 300 of IPC. The exception provides that that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
29. In this regard, it has been well established by law that culpable homicide becomes murder if the case comes under any one of the clauses out of the four defined in section 300 of the I.P.C. and the same becomes punishable under Section 302 of the I.P.C. But the culpable homicide is not murder if the case falls within any one of the exceptions out of five of the said section 300 of the I.P.C. and then the same becomes culpable homicide not amounting to murder and punishable under Section 304 of the I.P.C., but not under Section 302 of the I.P.C. Signature Not Verified pg. 17 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40
30. However, if an injury is inflicted with the knowledge and intention that it is likely to cause death, but with no intention to cause death the offence would fall within the definition of Section 304-I IPC and not under Section 302 IPC. In this regard, the Supreme Court in Virsa Singh v. State of Punjab1 as also in Shankar Narayan Bhadolkar v. State of Maharashtra2, opined as under:
"Applying the principles of law, as noticed hereinafter, I am of the considered opinion, that the offence committed by the appellants does not fall within the definition of Section 300 of the IPC, nor does it fall within the definition of offence, punishable under Section 304II of the Indian Penal Code. In my considered opinion, the learned trial Court rightly held that the nature of the offence, falls within the definition of Section 304-I of the IPC Section 304 deals with situations, where culpable homicide does not amount to murder, i.e. does not fall within the definition of murder, as contained in Section 300 of the IPC. Section 304 is sub- divided into two parts. If an injury is inflicted with the knowledge and intention that it is likely to cause death, but with no intention to cause death the offence would fall within the definition of Section 304-I, however, if there is no intention to cause such an injury, but there is knowledge that such an injury can cause death, the offence would fall within the 1 AIR 1958 SC 465 2 (2005) (9) SCC 71 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 18 Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 definition of Section 304-II. Thus, is intention.
If intention to cause such an injury as is likely to cause death, is established, the offence would fall under Part-I but where no such intention is established and only knowledge that the injury is likely to cause death, it would fall under Part-II."
"However, the nature of the injury, the weapon of offence, the intention and knowledge of the assailants, in my considered opinion, clearly places the offence as one under Section 304-I of the IPC. Appellant No.1 inflicted the injury with knowledge and intention that the injury, if inflicted is likely to cause death, but with no intention to cause death. However, as from the facts and circumstances of the present case, and the fact that it was a sudden fight, a single blow inflicted with the reverse side of a Kassi, it cannot be stated that he had an intention to cause death, as required to make out an offence under Section 300 of the IPC."
31. Reliance has also been placed on the decision of the Supreme Court in the case of State of Punjab v. Tejinder Singh & Anr.3 In this case, two persons inflicted Gandasa blows on the deceased. The altercation had already taken place four days prior to the incident over the boundary line of the plots of the parties. The accused persons came heavily armed shouting that the deceased should not be spared at a point of time when his 3 AIR 1995 SC 2466 Signature Not Verified pg. 19 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 wife had brought breakfast for him and he had gone to hand pump to bring water in a pitcher. It was even in the aforementioned situation, this Court held:
"In view of our above findings we have now to ascertain whether for their such acts A-1 and A- 2 are liable to be convicted under Section 302 read with Section 34, IPC. It appears from the evidence of PW-4 and PW-5 that the deceased was assaulted both with the sharp edge and blunt edge of the gandasas and the nature of injuries also so indicates. If really the appellants had intended to commit murder, they would not have certainly used the blunt edge when the task could have been expedited and assured with the sharp edge. Then again we find that except one injury on the head, all other injuries were on non-vital parts of the body. Post-mortem report further shows that even the injury on the head was only muscle deep. Taking these facts into consideration we are of the opinion that the offence committed by the appellant is one under Section 304 (Part I), IPC and not under Section 302, IPC."
32. In the present case, it has been clearly established by the prosecution that both the accused inflicted serious injury on the deceased. This has been established owing to the deposition of the eye-witnesses P.W.4, 5, 9, 11 and 12; due corroboration of the medical report submitted by the medical officer (P.W.8). The prosecution has further established that the injury was Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 20 Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 inflicted upon the deceased with the knowledge and intention that it is likely to cause death. However, he has not been able to prove whether the attack was premeditated and with an intention to cause death. Therefore, even if the injury inflicted was a serious one, it by itself may not be decisive but is one of the relevant factors in regards to the application of fourthly of Section 300. Application of the said provisions must be made keeping in mind the fact situation obtaining and the legal principles noticed hereinbefore.
33.For the reasons aforementioned, we are of the opinion that the both the Appellants are guilty of commission of the offence under Section 304 Part-I and not under Section 302 IPC thereof.
34. Therefore, we allow the appeal in part. Accordingly, the conviction and sentence to undergo imprisonment for life and to pay a fine of Rs.5,000/- in default to undergo R.I. for a further period of one year for commission of offence under Section 302 of the I.P.C. recorded by the learned Sessions Judge, Bargarh in C.T. Case No.82 of 2009, as per the judgment of conviction and order of sentence dated 07.12.2011 are hereby set aside. Instead, both the Appellants are convicted for the offence under Section 304, Part-I of the I.P.C. and sentenced to undergo R.I. for the period already undergone. The period of detention already undergone by both the Appellants during investigation, the Signature Not Verified pg. 21 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 trial as an U.T.P. and during the pendency of the appeal is set off under Section 428 of the Cr.P.C.
35. Both the Appellants- Sibananda Chhuria and Tian @ Atmaram Chhuria be set at liberty forthwith in the aforesaid case, unless their detention is not required in any other case.
36.Accordingly, both the Appeals are allowed in part.
( Dr. S.K. Panigrahi ) Judge D. Dash, J. I agree.
( D. Dash )
Judge
Orissa High Court, Cuttack,
Dated the 24th July, 2023/
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR pg. 22
Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40