LOKNATH BEHERA ALIAS KHOKAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant stood his trial being charged under Section 302 of the Indian State Penal Code (the Code, for short) with having intentionally and knowingly caused the death of Jogi Behera (hereinafter referred to as the deceased) and a co-accused person, namely, Govinda Behera, stood charged under Section 323 of the Code for causing hurt to Maheshwar Behera (P.W.1). The co-accused person was acquitted of the charge. The appellant was acquitted of the charge of murder and convicted for culpable homicide not amounting to murder under Section 304, Part I of the Code and sentenced thereunder to undergo rigorous imprisonment for a period of four years by the Court of Sessions, after acceptance of the case of the prosecution, not only on the basis of the evidence adduced by it but also from the admission made by the appellant, that on October 19, 1978, in the evening time, the appellant, then in his teens, dealt one blow by means of a lathi (M.O.I.) after a sudden quarrel and on the spur of the moment on the chest of the deceased which caused fracture of a rib, the fractured rib causing rupture of the spleen resulting in the death of the deceased .The learned trial Judge found The prosecution evidence will go to show that there was a sudden fight between the parties on account of the quarrel between the son of Panu and Mahesh., war (P. W.1) and it cannot be said that either Panu or his son Loknath the accused made a consistent plan to commit murder on account of previous enmity or grudge. Further, it has also been seen from the prosecution evidence that accused who is only aged 19 years gave only one blow on the chest of the deceased and never took any undue advantage of his position and did not treat the deceased Jogi cruelly. There for the sum total of the prosecution evidence established that Jogi met his death in the course of a sudden fight and the accused had no premeditation to commit murder. Further, it bas been established that the accused had not taken undue advantage and has not treated the deceased cruelly as he gave only a single blow. Hence the facts of this case will come under Exception (4) to Section 300 of the Indian Penal Code. But it must be pointed out that Khokan gave a blow on the left side chest of the deceased and by that blow the 10th rib was ruptured and it perforated the spleen and Jogi met his death. As I have already determined that accused Lok Nath has committed culpable homicide not amounting to murder and he caused the death with the intention of causing such bodily injury as is likely to cause death, he must be found guilty under Section 304, Part I of the Indian Penal Code and not under Section 302 of the Indian Penal Code for which he stood charged.

(2.) Appearing on behalf of the appellant, Mr. S. C. Mohapatra has not assailed the finding recorded by the trial court that the appellant had dealt one blow on the chest of the deceased which ultimately proved fatal. He has challenged the legality of the conviction of the appellant under Section 304, Part I of the Code and has urged that the appellants act would amount to causing hurt punishable under Section 323 of the Code although unfortunately there had been a fracture of the rib and the fractured rib ruptured the spleen causing the death of the deceased. It has been submitted on behalf of the State that from the evidence adduced and in the circumstances in which the appellant bad assaulted the deceased it could not reasonably be said that the act by which death was caused was done with the intention of causing death or of causing such bodily injury as was likely to cause death, but the act done by the appellant was with the knowledge that it was likely to cause death and therefore, he could be convicted under the second part of Section 304 of the Code. It has been contended that if this Court holds that the appellant had no knowledge that his act was likely to ca use death, the appellant would be held guilty of voluntarily causing grievous hurt punishable under Section 325 of the Code.

(3.) In view of the submissions made at the Bar, this Court is to determine the nature of the offence committed by the appellant keeping in mind the provisions of the Code and the principles of law applicable to such cases.