State of Orissa vs Budara Majhi

S. Acharya, J.—The Respondent was charged u/s 302, Indian Penal Code for committing the murder of Lingaraj Majhi, of village Lumagaon under Lanjigarh P. S. in Kalahandi district, at about 8 p. m. on 2-8-1972. He was also charged u/s 326, Indian Penal Code for causing grievous hurt to Tirumuhi Kondhuni (P.W. 7) by means of a sharp cutting weapon at the aforesaid time.

The prosecution case, in short, is that in the evening of 2-8-1972 the accused, the deceased and some other villagers had assembled in the house of P.W. 1 for the purpose of taking part in a feast in that house. At that place the deceased asked the accused to repay the rice loan which he had taken from him. The accused replied by saying that he would repay the loan next year. At this the deceased abused the accused in filthy language. At this the accused got enraged and dealt two blows in quick succession on the deceased with the sharp edge of a Tangi. The accused aimed another blow on the deceased, but the same fell on the left arm of P.W. 7. who was sitting by the side of the deceased and caused grievous injury to her. The villagers present there caught hold of the accused. The two injured persons were carried to the hospital; F. I. R. was lodged within a short time thereafter and after investigation and commitment the accused stood his trial for the charges stated above.

The accused pleaded not guilty to both the charges. He has completely denied the occurrence and has stated that he has been falsely implicated in this case.

The Court below has convicted the accused for two offences u/s 326. Indian Penal Code. one for causing grievous hurt to the deceased and another for causing grievous hurt to P.W. 7 - and he has been sentenced thereunder respectively to R. I. for 7 years and 5 years. The sentences have been ordered to run consecutively.

This appeal is directed against the acquittal of the accused Respondent of the charge u/s 302, Indian Penal Code framed against him on the allegation that he committed the murder of Lingaraj Majhi.

P.Ws. 1. 3,4, 6 and 7 are the eye witnesses to the occurrence. The Court below on a discussion and consideration of the eye witness version of the incident the dying declaration of the deceased and the evidence of P.W. 2, the doctor who at first treated the deceased for the injuries sustained by him and later, on his death held the post-mortem examination on his dead body, has arrived at the findings that it was the accused who inflicted the two grievous cut injuries on the person of the deceased; one of the said injuries was 5" x 3" on the left arm fracturing the left humerus and the other one was a cut injury 2" long x 1/2" deep on the left angle at the mouth. Mr. Mukherjee, the learned Counsel for the accused-Respondent, could not successfully assail the said findings. We are satisfied that on the evidence on record the said findings are established beyond any reasonable doubt.

P.W. 2 has stated that both the iniuries were grievous and ante-mortem in nature and were inflicted by a sharp cutting weapon like an axe. He further states that the death of the deceased was due to severe haemorrhage and cardia-respiratory failure due to the said injuries, and the said two injuries were sufficient in the ordinary course of nature to cause the death of the deceased. Because of the nature of the weapon and the nature of the injuries on the deceased and the resultant effect, the doctor has testified to the fact that the injuries were sufficient to cause the death of the deceased in the ordinary course of nature.

On the evidence on record it is also established beyond doubt that the accused intentionally inflicted those injuries on the deceased; that the said injuries were not accidental or unintentional; and that the accused actually intended to inflict those injuries and not any other injury on the deceased. The opinion of the doctor that the death was due to severe haemorrhage and cardia-respiratory failure due to the said injuries and that the said injuries were sufficient in the ordinary course of nature to cause the death of the deceased could not be successfully assailed.

The doctor (p w. 2) in his cross-examination has stated that very soon after the deceased was admitted in an injured condition in the hospital, he anticipated that the injured would succumb to the said injuries, and so he recorded his dying declaration. From the above facts it is quite clear that the injuries inflicted by the accused on the deceased were of such grievous nature as were sufficient to cause his death in the ordinary course of nature. It cannot also be said that the injuries were not on viral parts of the deceased''s body.

On the aforesaid well established facts in this case all the four elements, which are required to bring a case under the 3rd clause of Section 300, Indian Penal Code, as enumerated in the decision Virsa Singh Vs. The State of Punjab, are established beyond doubt by the prosecution. That being so, it does not matter that the accused did not have the actual intention to cause the death of the deceased, but as all the four elements to bring the case under the 3rd clause of Section 300, Indian Penal Code are amply brought home against the accused, he has to be convicted u/s 302, Indian Penal Code. In Virsa Singh Vs. The State of Punjab, it has been held that:

(1.3) Once these four elements are established by the prosecution (and, of course the burden .is on the prosecution throughout the offence is murder u/s 300 "thirdly". It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any distinction between the two). It dot''s not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflect injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional.

In this connection the decisions Anda and Others Vs. The State of Rajasthan, ; Ram Murti and Another Vs. State of Haryana, , and Mohan Singh and Others Vs. The State of Punjab, , may also be seen.

Mr. Mukherjee made a vain but sincere attempt to bring the accused''s case under the first exception to Section 300, Indian Penal Code. There is of course evidence on record that just before the occurrence the deceased abused the accused in objectionable or filthy language. But from that incident one cannot hold that the accused had reasons to be deprived of the power of self control by grave and sudden provocation. On the evidence on record a case under the first exception is not made out in this case.

On the above findings and conclusions the Court below was not justified in acquitting the accused of the charge u/s 302, Indian Penal Code for inflicting the aforesaid injuries on the deceased and thereby causing his death. On the above facts established in this case an offence u/s 300, Indian Penal Code is clearly established against the accused and so he is liable to be convicted u/s 302, Indian Penal Code instead of u/s 326. Indian Penal Code of which he has been convicted by the Court below. Accordingly, his conviction u/s 326, Indian Penal Code on this account is set aside and instead he is convicted on this score u/s 302, Indian Penal Code. In the facts and circumstances of this case the ends of justice will be served if the accused is sentenced to R. I. for life for his conviction u/s 302, Indian Penal Code and he is sentenced accordingly for the said offence.

The conviction of the accused u/s 326, Indian Penal Code for causing grievous hurt to Tirumuhi Kondhuni (P.W. 7) and the sentence passed thereunder are upheld. The aforesaid sentences are to run concurrently.

The Government Appeal is, therefore, allowed.

P.K. Mohanti, J.

I agree.

Appeal allowed.