Shankar Sethi vs State of Orissa

Accused in Sessions Case No. 37 of 1997 has filed the above noted Jail Criminal Appeal challenging to the order of conviction under Sections 324 and 302, Indian Penal Code as per the impugned judgment delivered on 17.5.1997 by Learned First Additional Sessions Judge, Berhampur.

According to the case of the prosecution, accused is the younger brother of the informant/P.W. No. 1, Sivaram Sethi. They are washer men by caste. A dispute arose relating to washing the clothes of one Sindhu Badhei. Accused being the earlier washer man in the family of Sindhu Badhei-informant took the job of washing clothes of Sindhu Badhei and therefore accused was bearing a grudge against informant and his wife. Jitendra, the deceased and Rabi are two sons of the informant respectively aged 12 and 10 years by the date of occurrence. On 7.4.1996, P.W. No. 1 was in the agricultural field and at about 11 A.M. his above named two sons came and informed him that accused was quarrelling with their mother, i.e., the wife of the informant namely Damayanti Sethi (P.W. No. 2). On hearing that P.W. No. 1, Sivaram Sethi with his sons rushed to the house and protested to the aggressive action of the accused. They tussled with each other and in that process accused brought out the knife (M.O. I) and dealt a blow to the head of P.W. No. 1. As a result of that P.W. No. 1 sustained bleeding injury and his 12 years old son Jitendra, i.e., deceased came for rescue of the injured father. At that moment accused dealt a knife blow on the head of Jitendra. He fell down sustaining bleeding injury because of that blow. Immediately Jitendra was taken to nearby P.H.C. at Sheragada, where the Doctor P.K. Das (P.W. No. 15) gave him preliminary treatment and advised for his specialized treatment because of the serious condition. P.W. No. 15 also examined the injuries of P.W. No. 1. Those injury certificates have been marked as Exts. 11 and 12 respectively. The deceased was then removed to the M.K.C.G. Medical College & Hospital, Berhampur, and at about 4 A.M. in the morning between 7/8/4/1996 the deceased succumbed to the injuries by not recovering from the coma. In the meantime, in the evening hours P.W. No. 1 went and reported the matter in the Police Station and on the basis of that a case was registered for the offences under Sections 307, 324 and 506, Indian Penal Code. After receiving the intimation regarding death of Jitendra, offence u/s 302, Indian Penal Code was also added. On completion of a routine investigation, charge sheet was submitted for the offence under Sections 307 and 302, Indian Penal Code and charge was accordingly framed by the Trial Court after commitment. Accused pleaded not guilty and claimed for trial.

In course of the trial, prosecution relied on the evidence of 16 witnesses and out of them, as noted in the impugned judgment and not disputed at the Bar, P.W. Nos. 1 and 2 are the parents of the deceased, P.W. No. 7 is the younger brother of the deceased and P.W. Nos. 3 and 4 are co-villagers. Their evidence was tendered as eye-witnesses to the occurrence. As noted above, P.W. No. 15 was the Doctor who first attended to the injured and the deceased. P.W. No. 13, the Professor and Heads of the Department of M.K.C.G. Medical College & Hospital, Berhampur conducted autopsy on the dead body of the deceased and proved the post mortem report Ext. 8 and the opinion report Ext. 9. P.W. No. 14 is Doctor Hrusikesh Mohapatra who collected the nail clippings of the accused and forwarded the same as per his report, Ext. 10. He also examined the accused and found one abrasion and one bruise respectively on the middle of the right arm and on the right side of the neck as per the injury report, Ext. A. P.W. No. 16 is the Investigating Officer. In course of investigation he collected the wearing apparels of the accused and the deceased and seized the weapon of offence and they were sent to the R.F.S.L., Berhampur under forwarding letter, Ext. 16. The report from the said laboratory has been marked as Ext. 17. The aforesaid are the relevant evidence to be considered in judging the correctness of the order of conviction.

In addition to the plea of denial at the stage of framing of the charge, in course of cross examination of the prosecution witnesses, accused also suggested that in course of the occurrence he was attacked and he dealt blow by means of stone and not by knife. In support of the defence, accused examined one co-villager, Karuna Sahu (D.W. No. 1).

On assessment of such evidence on record, Learned Additional Sessions Judge found the prosecution allegation to have been proved against the accused regarding his participation in the occurrence. Learned Addl. Sessions judge, however found that the charge for the offence u/s 307, Indian Penal Code not sustainable because injury sustained by P.W. No. 1 was simple in nature and there is no adequate evidence on record to prove that accused attempted murder of P.W. No. 1. Accordingly, Appellant was convicted for the offence u/s 324, Indian Penal Code for the said allegation in support of that conviction, Trial Court did not impose separate sentence to the accused on the ground that accused has been convicted for the offence u/s 302, Indian Penal Code with punishment of imprisonment for life. That part of the conviction is not challenged in course of the argument. Learned Standing Counsel also does not argue anything against the merit of that finding. Therefore, the findings and the conclusion arrived at by the Trial Court in respect of conviction u/s 324, Indian Penal Code is not disturbed.

Learned Additional Sessions Judge on a reference to the evidence on record also recorded the finding that prosecution has proved that accused is the author of the injury to the head of the deceased as a result of which the latter suffered homicidal death and that aspect is proved by the eye witnesses being duly corroborated by the medical evidence Accordingly he found accused guilty of the offence u/s 302, Indian Penal Code and sentenced him to undergo imprisonment for life.

The aforesaid finding is challenged by the accused/appellant on two grounds, viz., (i) all the eye-witnesses are interested witnesses and that too P.W. No. 7 was not properly tested u/s 118 of the Evidence Act and, therefore, such evidence is not sufficient to warrant a conviction against the accused for the offence u/s 302, Indian Penal Code; (ii) the defence evidence was not duly considered vis-a-vis the prosecution evidence and, therefore, there was failure on the part of the Trial Court to appreciate the evidence as a whole. In addition to that as an alternative argument, Learned Counsel for the Appellant argues that if the conviction is maintained on the allegation that accused dealt a knife blow to the deceased, then that amounts to an offence u/s 304, Indian Penal Code because there was no intention to kill the deceased and only a single blow was given. In that respect he relies on the ratio in the case of Kikar Singh Vs. State of Rajasthan, .

Before dealing with the aforesaid points, we refer to the evidence of P.W. No. 15 and the injury report Ext. 11 granted by him so also to the evidence of P.W. No. 13 and the post mortem report, Ext. 8. P.W. No. 15 stated that when the deceased in injured condition was brought to the P.H.C., he examined and found one incised wound of 4 c.m. x 0.2 c.m. x 0.5 c.m. tailing towards right side of the frontal region of the scalp and one incised wound with bleeding of the size of 3.5 c.m. x 0.25 c.m. x 3 c.m. depth on the right side temporal region of the scalp 10.5 c.m. above the root of the right ear. He has opined that the injury was caused by a sharp cutting weapon like knife. P.W. No. 13 stated in his evidence and also noted in the post mortem report, Ext. 8 corroborating to the above noted injury, which had been stitched in the meantime, by P.W. No. 15. P.W. No. 13 deposed that "this wound was communicating to the cranial cavity and through the opening of the wound, brain tissue was coming out in little amount." He found the corresponding internal injury such as a hematoma surrounding wound bone had been cut, meninges were cut with regular margin and brain substance in right cerebral hemisphere of the occipital lob had been cut with regular margin. P.W. No. 15 opined that soon after arrival of the deceased to the P.H.C., he went to coma. P.W. No. 13 has clearly stated that death was due to coma as a result of the injury to the skull and brain and such injuries were ante mortem in nature and sufficient to cause death in ordinary course of nature. On 8.4.1996 on police requisition, P.W. No. 15 examined M.O. No. 1 and opined that the injury found on the dead body of the deceased might have been caused by that knife. Ext. 13 is that report of P.W. No. 15. On 9.4.1996, the Investigating Officer also sent the M.O. I to P.W. No. 13 and as per his opinion report, Ext. 9, P.W. 13 also opined that injury found on the dead body was possible by that weapon. It is thus clear from the aforesaid evidence on record that deceased suffered a homicidal death due to the blow inflicted by M.O.I.

The eye-witnesses to the occurrence have deposed in support of the prosecution and there is no adequate cross-examination to shatter their credibility. Mr. Nanda, Learned Counsel appearing for the Appellant, as noted above, contends that P.W. Nos. 1, 2 and 7 being the parents and the brother of the deceased and P.W. Nos. 3 and 4 being the co-villagers, they are all interested witnesses for the prosecution and their evidence should not have been accepted in absence of corroboration from the independent witnesses. We find no merit in that argument inasmuch as the law of evidence and the prudent does not demand for corroboration to the statement of a relative figuring as eye-witness to such a crime. Near relatives are competent to be eye-witnesses if they have seen the occurrence. When the occurrence is proved by cogent evidence of the eye-witnesses, it is too much for the accused to demand further corroboration. Be that as it may, P.W. Nos. 3 and 4 as co-villagers have also deposed in proof of the charge that accused is the author of the knife blow to the deceased, as a result of which the latter died.

Admittedly P.W. No. 7 was aged 10 years by the date of his examination in the Trial Court. A few questions were put to that witness to test if he is competent to testify. Section 118 provides that a person shall be competent to testify unless the Court considers that such person is prevented from understanding the question put to him, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. In this case except P.W. No. 7 no other witness was tested by the Trial Court to test the capacity to depose. In other words when P.W. No. 7 was introduced to the witness box, the Presiding Officer had taken steps to ascertain if this witness due to his tender age was capable of understanding the questions put to him and giving rational answers to those questions. Though a few questions were put to him but learned Additional Sessions Judge did not give a certificate either in the deposition or in the order sheet as to his satisfaction about the capacity to depose by that witness. Under such circumstances, we find that evidence of P.W. No. 7 in this particular case is not to be considered in support of the prosecution. Even after such exclusion of that evidence, we find that evidence of P.W. Nos. 1 to 4 is credible and trustworthy to prove that accused is the author of the murder of the deceased. Therefore, exclusion of the evidence of P.W. No. 7 in the above-indicated manner does not affect the merit of the prosecution case.

On perusal of the evidence of D.W. No. 1, we find that he had stated in the Trial Court that accused was assaulted by P. Ws. 1, 3 and 4 along with one Jitu and as a result of that accused was lying in front of his house of the Village Danda. He did not see the accused killing Jitendra and that accused was already lying on the ground when deceased was assaulted. In the last two lines in the examination-in-chief, he stated that, "Jitendra fell down by receiving injuries on the Danda of Bisu Sethi. I cannot say the intention of the accused to kill Jitendra". On a bare reading of the aforesaid evidence, we find that D.W. No. 1 is not a true and trustworthy witness and his evidence is not logically co-related to the sequence of events narrated by him. It appears from the evidence of the Doctor Hrushikesh Mohapatra, P.W. No. 14 that he found one abrasion of the size of 1" x 1/4" on the middle of the right arm of the accused and a bruise of the size of 1" x 1/2" on the right side of the neck. According to the doctor both the injuries were simple in nature. D.W. No. 1 in the above context stated that, "I cannot say on which part of the body, Sankar received assault from the informant and others. I cannot say as to who was using what weapon at that time to assault to the accused." Thus we find D.W. No. 1 to be not a true and trustworthy witness and, therefore, we do not find any fault on the approach of the Trial Court to discard his evidence.

For the reasons indicated above, we accept the prosecution evidence in support of the charge against the accused for the crime alleged against him and accordingly agree with the factual finding recorded by the Trial Court in proof of the charge for the offence of murder.

In support of the alternative argument for conviction u/s 304, Indian Penal Code Learned Counsel for the accused/appellant relies on a decision which in effect does not support his contention. In the case of Kikar Singh (supra) such contention of the Appellant there and the ratio of the Apex Court have been stated in the following manner:

The counsel attempted to bring the case within exception 4, for its application all the conditions enumerated therein must be satisfied. The act must be committed without premeditation in a sudden fight in the heat of passion; (2) upon a sudden quarrel; (3) without the offenders having taken undue advantage; and (4) the accused had not acted in a cruel or unusual manner. Therefore, there must be a mutual combat on exchanging blows on each other. and however slight the first blow, or provocation, every fresh blow becomes a fresh provocation. The blood already heated or warms up at every subsequent stroke. The voice of reason is heard on neither side in the heat of passion. Therefore, it is difficult to apportion between them respective degrees of blame with reference to the state of things at the commencement of the fray but it must occur as a consequence of a sudden fight, i.e., mutual combat and not one sidetrack. It matters not what the cause of the quarrel is, whether real or imaginary, or who draws or strikes first. The strike of the blow must be without any intention to kill or seriously injure the other. If two men start fighting and one of them is unarmed while the other uses a deadly weapon, the one who use such weapon must be held to have taken an undue advantage denying him the entitlement to exception 4. True the number of wounds is not the criterion, but the position of the accused and the deceased with regard to their arms used, the manner of combat must be kept in mind wen applying exception 4. When the deceased was not armed but the accused was and caused injuries to the deceased with fatal results, the exception 4 engrafted to Section 300 is excepted and the offences committed would be one of murder.

The occasion for sudden quarrel must not only be sudden but the party assaulted must be on an equal footing in point of defence, at least at the onset. This is specially so where the attack is made with dangerous weapons. Where the deceased was unarmed and did not cause any injury to the accused even following a sudden quarrel if the accused has inflicted fatal blows on the deceased, exception 4 is not attracted and commission must be one of murder punishable u/s 302. Equally for attracting exception 4 it is necessary that blows should be exchanged even if they do not all find their target. Even if the fight is unpremeditated and sudden, yet if the instrument or manner of retaliation be greatly disproportionate to the offence given, and cruel and dangerous in its nature, the accused cannot be protected under exception 4. In Pandurang Narayan Jawalekar Vs. State of Maharashtra, , the facts proved were that the Appellant gave a blow on the head of the deceased old man who was advising him not to quarrel. The injury caused to the brain from one end to the other resulted in fracture as could appear from the evidence of the doctor. It would show that the accused must have struck the blow on the head of the deceased with an iron bar with very great force. Accordingly it was held that exception 4 does not apply though there was sudden quarrel and that the fight was not premeditated to cause death. It must be shown that the injury caused is not cruel one. The conviction for offence u/s 302 by the High Court reversing the acquittal by Trial Court was upheld.

If the weapon used or the manner of attack by the assailant is out of all proportion to the offence given, that circumstance must be taken into consideration to decide whether undue advantage has been taken. Where a person during the course of a sudden fight, without premeditation and probably in the heat of passion, took undue advantage and acted in a cruel manner in using a deadly weapon there was no ground to hold that his act did not amount to murder. Therefore, if the Appellant used deadly weapons against the unarmed man and struck him a blow on the head it must be held that using the blows with the knowledge that they would likely to cause death and he had taken undue advantage. He did not stop with the first blow, he inflicted two more blows on the fallen man and the third one proved to be fatal. He acted cruelly with no justification. By his conduct the Appellant denied himself of the benefit of exception 4 to Section 300, Indian Penal Code.

In view of the above quoted ratio and the fact situation that an innocent boy of 12 years old was injured and killed without any provocation from him, we do not find it to be a case of culpable homicide not amounting to murder when the single blow inflicted was on the vital part of the body and that injury was sufficient in ordinary course of nature to cause death of the deceased. Accordingly that contention of the Appellant is also rejected.

In the result, the Jail Criminal Appeal is dismissed.

Crl. Appeal dismissed.