The main legal point established in the given judgment is that the appellant's act was committed on the spur of the moment, without premeditation, and without taking undue advantage or acting in a cruel or unusual manner, leading to the conversion of the conviction under Section 304 Part-I of the IPC.

JUDGMENT :

S. TALAPATRA, J.

1. This is an appeal by the convict (hereinafter referred to as the appellant) from the Judgment and Order of conviction and sentence dated 20.06.2014 delivered in C.T. No. 46 of 2011 by the Sessions Judge, Rayagada. By the said Judgment, the Sessions Judge convicted the appellant for committing the offence punishable under Sections 302 and 323 of the IPC and sentenced him to suffer rigorous imprisonment for life [without imposing fine] and one year rigorous imprisonment for committing offence under Section 323 of the IPC. It has been also observed that the appellant is entitled to setoff under Section 428 of the Cr.P.C. While returning the finding of conviction, it has been observed by the Sessions Judge that the act of the appellant in dealing blows on the deceased cannot be termed to be only an act of preventing him from taking PW-2 away. Had that been the case, the appellant could have pushed away the deceased, who was much older than him or, in the worst case, could have dealt a single blow to deter him for interfering in taking his wife away. The accused did not stop at a single blow. He dealt successive blows which certainly cannot be understood as preventive. In addition, it is also to be seen that the force with which the blows were dealt and the impact that caused, caused the death by doing an act with knowledge that he was likely by such act to cause death. Having noted thus, the Sessions Judge has held that it cannot be said that the act of the appellant was impulsive and outcome of his volatile temper. Thus, the appellant committed culpable homicide. The act with which the death is caused is done with intention of causing such bodily injury to the deceased, namely Bijaya Kumar Majhi and such bodily injury was sufficient in the ordinary course of nature to cause death. Hence, it has been observed that the clause, thirdly of Section 300 IPC read with illustration (c) takes within its fold the facts and the attendant circumstances of the case. Thus, the defence plea of culpable homicide not amounting to murder was discarded. It may not be out of context to note that the appellant dealt blow also on the wife of the deceased (PW-4) by the same Musala (the weapon of offence), she sustained injuries on her head and fell down. PW-15 found lacerated wound on the back of her head but she was not examined by PW-21, as she was hospitalized till 16.01.2011. Such evidence has not been disputed, in any manner. From the above, it is clear that by the act of the accused she sustained pain. So the culpable act of hurt is proved against the appellant. The appellant by assault by Musala caused bodily pain to PW-4 with intention to cause hurt to her. Hence, the conviction based on those findings is under challenge, by means of this appeal.

2. It appears that this appeal has been structured fundamentally on two grounds viz. (1) due to sudden provocation, the occurrence took place and hence, the conviction under Section 302 of the IPC is unsustainable and (2) there had been no meditation or preparedness but on the spur of a moment, when the deceased prevented the appellant being enraged hit the deceased and his wife with Musala. Therefore, there is no evidence of intention to kill as is essentially required to form the charge under Section 302 of the IPC. For the purpose of appreciating the appeal, the facts as are considered relevant, may briefly be introduced at the outset.

3. The wife of the appellant namely, Narangi Majhi, is the daughter of the deceased, namely, Bijaya Kumar Majhi. There had been matrimonial discord and his daughter came to his house. On 08.11.2011 at about 06.00 P.M., the appellant and his brother, Agin, Sister-in-law, Subarna, came to the deceased’s house to take back Narangi. It was agreed that Narangi would leave for her matrimonial home. The deceased entreated the appellant and others to stay at night and to take his daughter on the following morning. During the discussion, the appellan