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2007 Supreme(Ori) 906
IN THE HIGH COURT OF ORISSA
Sanju Panda, P.K. Tripathy, JJ.
KASEL DAS AND ANOTHER - APPELLANT
Versus
STATE OF ORISSA - RESPONDENT
Jail Criminal Appeal No. 281 of 1997
Decided On : 21-11-2007
S.K. Zafarulla, for the Appellant; A.G.A., for the Respondent
The central legal point established in the judgment is the distinction between murder and culpable homicide not amounting to murder based on the presence of sudden quarrel and provocation, and the absence of intention to kill.
Headnote:
Jail Criminal Appeal - Conviction under Sections 302/34 IPC - Indian Penal Code - Summary of Acts and Sections: Sections 302/34, 304 Part I/34 IPC - The court discussed the provisions of Sections 302, 304 Part I, and 34 of the Indian Penal Code and their interpretation in cases of sudden quarrel and provocation, leading to the distinction between murder and culpable homicide not amounting to murder.
Fact of the Case:
The Appellants were convicted under Sections 302/34 IPC for assaulting and causing the death of the deceased during a quarrel. The prosecution's evidence and testimonies of witnesses supported the conviction.
Finding of the Court:
The court found that the Appellants' actions were an outcome of a sudden quarrel and provocation, without the intention to kill the deceased. The court concluded that the offence committed was culpable homicide not amounting to murder.
Issues: The main issue was whether the Appellants' actions constituted murder under Sections 302/34 IPC or culpable homicide not amounting to murder under Section 304 Part I/34 IPC.
Ratio Decidendi: The court considered the evidence of sudden quarrel and provocation, as well as previous case law, to distinguish between murder and culpable homicide not amounting to murder. The court emphasized the absence of intention to kill and the spur of the moment nature of the assault.
Final Decision: The order of conviction under Sections 302/34 IPC was set aside, and the Appellants were found guilty of the offence under Section 304 Part I/34 IPC. They were sentenced to undergo rigorous imprisonment for ten years.
JUDGMENT :
1. This Jail Criminal Appeal has been filed by the Appellants who have been convicted under Sections 302/34 of the Indian Penal Code vide judgment dated 21st October, 1997 passed by learned Sessions Judge, Dhenkanal-Angul in Sessions Trial Case No. No. 16-D of 1994 and sentenced them to undergo imprisonment for life.
2. Facts, as alleged by the prosecution, are that on 08.07.1993 there was a quarrel between the sons of the accused Dheda (Appellant No. 2) and Fakir, the deceased. On the complaint of his son, accused Dheda came to the house of the deceased and assaulted the son of the deceased and also assaulted the wife of the deceased, who wanted to intervene in the matter. Then the deceased was not present in his house. On 10.07.1993, in the morning at about 7 a.m. accused Dheda was questioned for the aforesaid overt acts and assault. Accused persons retaliated to that questioning, made altercations with the deceased and assaulted the deceased by means of stick (lathi). On sustaining such blow, deceased fell down with bleeding injuries, villagers intervened and the accused persons fled away. According to that allegation, accused (Appellant No. 1) Kasei Das dealt one blow to the head of the deceased followed by two subsequent blows. When the deceased fell down in an injured condition was then taken to Matha Karagola Primary Health Center and therefrom to the Sub-Divisional Hospital at Kamakhyanagar and from that place, on the medical advice, they took the deceased to Cuttack Hospital. On the way the deceased succumbed.
Initially on the information of P.W. 2, the Officer-in-Charge, Kamakhyanagar registered a case u/s 307/34 IPC and subsequent to the death of the deceased, the case was converted to Section 302/34 IPC.
3. The defines plea is one of complete denial and false implication and in their statement u/s 313 Code of Criminal Procedure both the accused persons have taken a further plea that on the date and time of occurrence the deceased came out with a Kati to assault them for which both of them to protect themselves waved the lathis and due to such waving of lathis, deceased fell down on a stone sustaining head injuries.
4. To prove the case, prosecution examined as many as seven witnesses. The accused persons examined one witness in their defence.
5. P.Ws. 1 and 2 are sons of the deceased and P.W.2 is also the informant and they claim to be the eye witnesses. P.W.5 is one of the co-villager and is a witness to the occurrence. P.W. 3 is the doctor who conducted post-mortem on the dead body of the deceased. P.W.4 is Anr. Medical Officer who examined the deceased in injured condition and also recorded his dying declaration prior to being referred the injured to the Sub-Divisional Hospital, Kamakhyanagar. P.W.7 is the Officer-in-Charge.
P.W.3, the Doctor, who conducted the post-mortem and found the following external injuries.
1. Abrasion 3/4" X 1/4" situated over the front of left writ joint,
2. Bruise 6" X 1/4" obliquely placed over left scapular region,
3. Swelling of 4" diameter situated over left parietal region of scalp.
4. Lacerated wound 2" X 1/4" X 1/4" longitudinally situated over injury No. 3.
On dissection, he found a big subcutaneous haematoma beneath injury No. 3 and internal injuries. He opined that all the injuries are ante mortem in nature and cause of death was injury to the vital organ like brain and the same was found to be sufficient in ordinary course of nature to cause death.
6. The evidence of P.Ws. 1 and 2 virtually corroborated each other on the fact that prior to the date of occurrence there was a quarrel between him (P.W. 1) and son of accused Dheda for which Dheda came out from his house and assaulted him and his mother during absence of the deceased. On the date of occurrence there was an altercation between the accused persons and the deceased on the said issue and at that point of time both the accused Kasai and Dheda at the instigation of Nanda (father of accused) dealt lathi blows to the dece
