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2017 Supreme(Ori) 1395
IN THE HIGH COURT OF ORISSA
SATRUGHANA PUJHARI AND DR. D.P.CHOUDHURY, JJ.
JCRLA NO. 136 OF 2004
(Date of Judgment : 16.09.2017)
From the judgment and order dated 08.11.2004 passed by Shri B.S. Mohapatra, Addl. Sessions Judge, Rayagada in Sessions Case No. 32 of 2001.
Miniaka Masuri … Appellant
Versus
State of Orissa … Respondent
For Appellant :Mr. B.S. Das, Advocate for M/s. A.K. Dalai and P.K. Sahu (2), Advocates.
For Respondent:Mr. D.K. Mishra, Additional Govt. Advocate
Headnote:1. PENAL CODE, 1860 -Sec. 302 - Conviction under - Appeal - Prosecution has proved its case that it is the appellant and nonelse had done the deceased to death - Incident occurred during the certain quarrel between the father of the appellant and the deceased and also the appellant is a party to the same -Appellant had not come to the spot to assault the deceased - No pre-meditation -Such overt act of the appellant is a ‘culpable homicide not amounting to murder’ and punishable u/s. 304 Part-I of IPC - Directions issued. (Paras - 12 to 16).
2. PENAL CODE, 1860 -Secs. 302, 304 - All ‘murders’ are ‘culpable homicide’ but not vice versa - ‘Culpable homicide’ sans ‘special characterstic of murder’ is ‘culpable homicide not amounting to murder’ - Detailed stated.
In the scheme of the Code, even if a ‘culpable homicide’ contains the ‘special characteristic of murder’, but if the same has been committed within the circumstances excepted in Section 300 of IPC, the same may amounts to ‘culpable homicide not amounting to murder’ and punishable under Section 304, Part-I or Part-II of the IPC. To decide whether a ‘homicide’ is culpable homicide amounting to murder’ or ‘not amounting to murder’, the first question that is required to be considered by the Court is that whether ‘homicide’ caused by the accused was falling in any of the three clauses of Section 299 of IPC, i.e., whether the accused intending the death of the deceased caused his death? Whether the accused caused bodily injury which is likely to cause death? Or whether he did an act with the knowledge that his act is likely to cause death? If the act of the accused falls in any of the aforesaid clauses, the same amounts to ‘culpable homicide’ and such ‘culpable homicide’ when covers by the aggravating circumstances as mentioned in Section 300 of IPC, the same would amount to ‘murder’. But, such ‘culpable homicide’ is not covered by any of the clauses mentioned in Section 300 of IPC, the same is a ‘culpable homicide not amounting to murder’ punishable under Section 304 of IPC. Besides the same, even if ‘culpable homicide’ was committed in any of the aggravating circumstances mentioned in Section 300 of IPC, but the same is done in the circumstanced mentioned in exception to Section 300 of IPC, the same does not amount to ‘murder’. The aforesaid particularly speaking the scheme of the Code. (Para - 13)
JUDGMENT
S.PUJAHARI, J. - The appellant herein, calls in question the judgment of conviction and order of sentence dated 08.11.2004 passed against him in Sessions Case No. 32 of 2001 on the file of the Addl. Sessions Judge, Rayagada. By the impugned judgment, the learned trial Court held the appellant guilty of the charge under Section 302 of the Indian Penal Code, 1860 (for short “the IPC”) and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 5,000/, in default, to undergo R.I. for six months more.
2. Prosecution case as placed before the trial Court is that in the night intervening 25/26.06.2001, the deceased, who happens to be the uncle of the appellant, in a state of inebriation, was shouting in the village and when the father of the appellant (D.W.1) made protest to the same being his elder brother, he (deceased) assaulted him with a ‘Thenga’. The appellant seeing the same, being enraged, assaulted the deceased with ‘Thenga’(M.O.I) causing injury on his chest and head, and the deceased succumbed to the injuries there. The appellant then with his father went to Mandingi Mala (P.W.1) who was in his guard hut in his field to guard his crop and confessed the guilt before him. P.W.1 then along with them came to the village and found the deceased to be lying dead and also ‘Thenga’ (M.O.I) was there and in the morning following such date of incident, P.W. 1 along with others reported the matter orally before the police at Rayagada Police station, pursuant to which the F.I.R. Ext. 1/1 was drawn by the police and investigation was taken up. The police conducted investigation and during course of investigation found the report to have substance and, as such, placed charge-sheet against the appellant under Section 302 of I.P.C. The S.D.J.M, Rayagada committed the case to the Court of Sessions. The trial Court on the basis of materials placed framed charged under Section 302 of IPC against the appellant, but the appellant pleaded not guilty to the charge and claimed to the tried. Prosecution, as such, examined 8 witnesses, exhibited 11 documents and 1 Material Objects. i.e., Thenga (M.O.I) to substantiate the charge framed against the appellant. The appellant, who had taken a plea of denial and false implication examined his father – Miniaka Kurma (D.W.1) as a defence witness in support of his defence plea. On conclusion of the trial, the trial Curt held the appellant guilty of the charge under Section 302 of IPC and sentenced him as stated earlier.
3. Learned counsel for the appellant contends that the impugned judgment of conviction and order of sentence as returned by the trial Court are unsustainable, as according to him, the evidence of the witnesses implicating the appellant to be the author of the crime, is unworthy of credence. The learned counsel further contends that even if the case of the prosecution case is accepted in its entirety, the same does not attract the ingredients of the charge under Section 302 of IPC, as during course of a quarrel, without any premeditation, the appellant in heat of passion said to have dealt a blow with a ‘Thenga’ on the head of the deceased. The same can at best attract the ingredients of an offence under Section 304, Part-II of I.P.C. and the appellant being a tribal, a lenient view with regard to the sentence be taken against him.
4. On the other hand, Mr. D.K. Mishra, the learned Addl. Government Advocate for the State defends the impugned judgment of conviction and order of sentence, advancing the submission that the appellant having no reason, when the deceased, who happens to be his uncle, was quarrelling with his elder brother, the father of the appellant, dealt lathi blows to the deceased which led to his death and no material being there to indicate of his being provoked, the impugned judgment of conviction and order of sentence warrant no interference of this Court.
5. When the contentions of the parties regarding the sustainability of the impugned judgm
