IMPORTANT POINT
If time is taken to cool down, then the crime cannot be said to have been committed in a heat of passion.

JUDGMENT

CHANDRAMAULI KR. PRASAD, J.

State of Orissa, aggrieved by the judgment and order dated 1st September, 2009 passed in Criminal Appeal No.274 of 1997 whereby the Division Bench of the High Court has altered the conviction of the respondents from Section 302/34 to Section 304 Part II of the Indian Penal Code (hereinafter to be referred to as ‘the IPC’), has preferred this Special Leave Petition.

Leave granted.

In the present appeal, as we are concerned with the nature of the offence said to have been committed by the respondents (hereinafter to be referred to as ‘the convicts’), we shall refer to only those facts which are necessary for decision on the said issue. Occurrence in the present case had taken place in Raghunathpali, a hamlet within the district of Sambalpur in the State of Orissa. As usual, on 11th October, 1995 Mohini Naik and her father, Tikeshwar Naik were sleeping at their home in separate rooms adjoining each other. When the entire village was fast asleep, the convicts came to their house at 11.00 P.M. and knocked the door in which Mohini, the rustic villager was sleeping. She was asked to open the door of her room. She could recognize the convict Khageswar from his voice and on enquiry as to who was knocking the door, Khageswar disclosed his name. She opened the door and saw the three convicts standing at the door. Two of them i.e. Khageswar and Kampa entered into her room and molested her. She raised alarm whereupon her father, Tikeshwar woke up and arrived at the spot and abused the convicts in obscene language. All the three convicts caught hold of her father, assaulted him by kicks and blows and dragged him towards the orchard. He was followed by his daughter, Mohini, the informant of the case. She was threatened that if she will come out, they will kill her. Mohini saw her father being assaulted from a distance by Khageswar and Dusasan. While Tikeswar was abusing the convicts, Khageswar brought one ‘budia’ from his house and gave blows to him. Similarly, convict Dusasan brought a ‘lathi’ from his home and assaulted her father. Ultimately, Mohini could see the dead body of her father lying in ‘Nala’ at about 3.00 P.M. on 12th October, 1995.

Police after usual investigation submitted the charge-sheet and the convicts were ultimately committed to the Court of Session to face the trial. The convicts were charged for commission of the offences under Sections 457,354,506,302 and 201/34 of the IPC. They pleaded not guilty and claimed to be tried. Their defence is false implication but no defence witness has been examined.

The trial court on appreciation of evidence came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubt against the convicts and accordingly, it convicted them for offences under Sections 457,354,506,302, 201/34 of the IPC. On appeal, the High Court accepted the case of the prosecution but held that the allegations proved construed an offence under Section 304Part-II of the IPC. Accordingly, while maintaining the conviction of the respondents under Sections 457,354,506 and 201/34 of the IPC, the High Court altered their conviction from Section 302/34 of the IPC to that of Section 304 Part II of the IPC and sentenced them to undergo rigorous imprisonment for a period of eight years for offence under Section 304, Part II of the IPC. While doing so, the High Court observed as follows:

“ 17. We, however, find that the prosecution has failed to establish that the accused persons had any prior motive or pre-meditation to kill deceased Tikeswar and admittedly, the prosecution has not been able to establish that there was any enmity between deceased Tikeswar or his daughter Mohini (P.W.4) with the accused persons. It appears, the accused persons who had gone to the house of P.W.4 to commit sexual act, on being abused by Tikeswar in obscene language, got provoked and attacked Tikeswar in a fit of anger and on the spur of the moment, without any prior planning