Partly allowed

Mahadev Kisan v. State

Orissa HC12 Sept 2023JCRLA/90/2005

Case brief

AI extract

What is this about?

In an appeal against murder conviction, the High Court of Orissa set aside the conviction under Section 302 IPC, holding the offense amounted to culpable homicide not amounting to murder under Section 304 Part-II IPC due to heat of passion, while confirming the conviction under Section 27 of the Arms Act.

What did the court decide?

Conviction under Section 302 IPC set aside and replaced with Section 304 Part-II IPC; conviction under Section 27 of Arms Act confirmed.

Mahadev Kisan Vs State — Murder and Culpable Homicide | Orissa HC (2023)

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Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 25-Sep-2023 17:37:19

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IN THE HIGH COURT OF ORISSA, CUTTACK

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JCRLA No.90 of 2005

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An appeal under section 374 Cr.P.C. from the judgment and order dated 25.02.2005 passed by the Additional Sessions Judge, Sambalpur in Sessions Trial No.318/1 of 1999-2000.

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------------------------

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Mahadev Kisan ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant: - Mr. B.K. Ragada
Advocate
For Respondent: - Mr. Rajesh Tripathy
Addl. Standing Counsel
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
AND
THE HONOURABLE MR. JUSTICE SIBO SANKAR MISHRA

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Date of Hearing and Judgment: 12.09.2023

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By the Bench: The appellant Mahadev Kisan faced trial in the Court

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of learned Additional Sessions Judge, Sambalpur in Sessions Trial No.318/1 of 1999-2000 for commission of offence punishable under section 302 of the Indian Penal Code (hereinafter ‘I.P.C.’)

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 25-Sep-2023 17:37:19

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on the accusation that on 16^th April 1999 at about 2.30 p.m. in village Dadaratapu, he committed murder of Natha Kisan (hereinafter ‘the deceased’) by shooting him with a countrymade gun. He was also charged under sections 25/27 of the Arms Act on the accusation that he was found in possession of a country-made gun in contravention of the provision of the Arms Act and used the gun in committing the murder of the deceased.

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The learned trial Court though acquitted the appellant of the charge under section 25 of the Arms Act but found him guilty for the offence under section 302 of the I.P.C. and section 27 of the Arms Act and sentenced him to undergo imprisonment for life and to pay a fine of Rs.10,000/- (rupees ten thousand), in default, to undergo R.I. for a further period of six months for the offence under section 302 of the I.P.C. and sentenced to undergo R.I. for three years and to pay a fine of Rs.2,000/- (rupees two thousand), in default, to undergo R.I. for a further period of two years for the offence under section 27 of

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the Arms act and both the sentences were directed to run concurrently.

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Prosecution Case :

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The prosecution case, as per the first information report (hereinafter ‘F.I.R.’) presented by Sribatsa Kisan (P.W.1)

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 25-Sep-2023 17:37:19

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before the Officer in-charge of Kisinda police station on 16.04.1999 is that in the month of Srabana in the year 1998, while the younger brother of the informant, namely, Ganapati Kisan (P.W.6) was ploughing the field, he found the carcass of a bullock on his land for which as per the prevalent custom of their caste, he was supposed to give a feast to the caste members and accordingly, a feast was organized on 16.04.1999 and caste people of the informant were attending the feast at about 2.30 p.m. While about thirty persons were taking food, a quarrel

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ensued between the appellant and his uncle Sukru Kisan (P.W.3). P.W.5 Parameswar Kisan, who was present there, tried to dissuade the appellant from quarrelling with P.W.3, but the appellant without paying any heed to the advice of P.W.5, threw dust in the prepared food and left the place in an angry mood. After some time, the appellant came back holding a gun and shouted at the persons who were attending the feast and threatened to kill them. The appellant stood at a distance of about thirty feet away from the place where the persons were taking food in sitting position and threatened all of them and looking at this, the deceased, the father of the informant, stood up and tried to convince the appellant. However, the appellant fired gunshot which hit the right side chest of the deceased, as a result of which, he fell down on the ground and died. Looking at

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 25-Sep-2023 17:37:19

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this, the informant and other persons who were present at the venue of feast caught hold of the appellant and took away the gun from him and kept him in a captive state and thereafter, the informant came to the police station to lodge the F.I.R.

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The oral report which was given by the informant before P.W.10, the Officer in-charge of Kisinda police station was reduced to writing and ultimately Kisinda P.S. Case No.8 dated 16.04.1999 was registered under section 302 of the I.P.C. and section 25 of the Arms Act against the appellant.

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P.W.10, the officer in-charge of Kisinda police station

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after registration of the case, took up the investigation and during the course of investigation, P.W.10 examined the informant (P.W.1) as well as other witnesses, deputed the home guards for guarding the spot and dead body, sent requisition for services of scientific team and on that very day at about 8.00 p.m., he visited the spot and found that the dead body of the deceased was lying there and a gun and a cotton bag were also lying and some cooking materials and the food which was not consumed were also there. The appellant was also found lying on the cot being detained by the villagers in an injured condition. Thereafter, the appellant was sent to P.H.C., Girishchandrapur on police requisition for his medical examination and since

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 25-Sep-2023 17:37:19

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darkness prevailed, the inquest over the dead body could not be conducted and on the next day i.e. on 17.04.1999, the I.O. (P.W.10) revisited the spot in the morning hours, prepared the spot map marked as Ext.8, held inquest over the dead body and prepared the inquest report marked as Ext.2. The scientific team also visited the spot, took photographs and collected the blood stained earth, sample earth, country-made gun, eleven numbers of empty caps, thirty two numbers of lead balls, one bottle containing explosives, one bottle containing charcoal, two packets containing phatka etc. from the spot and after seizure, the exhibits were sealed and a seizure list was prepared by P.W.10. The dead body was sent to Sub-Divisional Hospital, Rairakhol for post mortem examination. The I.O. also seized the cooking utensils at the spot and on 20.04.1999, he seized the wearing apparels of the deceased when those were produced by the escorting constable along with command certificate. The appellant was arrested on 21.04.1999 and he was forwarded to

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Court. On 21.05.1999, P.W.10 handed over the charge of investigation to P.W.11 Krushana Chandra Acharya, S.I. of police attached to Kisinda police station and he collected the post mortem report and thereafter he delivered the charge of investigation to S.I. Bharat Pradhan (P.W.9) who seized the bed head ticket of the appellant from the district headquarters

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 25-Sep-2023 17:37:19

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hospital, Sambalpur, examined some witnesses and prayed before the Court of S.D.J.M., Rairkhol for sending the material objects to R.F.S.L., Sambalpur for chemical examination and on completion of investigation, he submitted the charge sheet against the appellant under section 302 of the I.P.C. and sections 25 and 27 of the Arms Act.

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Framing of Charges :

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After submission of charge sheet, the case was

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committed to the Court of Session. After complying due formalities, the learned trial Court framed charges against the appellant as aforesaid and since the appellant refuted the

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charges, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt.

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Prosecution Witnesses & Exhibits :

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During the course of trial, in order to prove its case, the prosecution has examined as many as twelve witnesses.

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P.W.1 Sribatsa Kisan is the informant and the son of

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the deceased. He is an eye witness to the occurrence.

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P.Ws.2, 3, 5 and 6 are the co-villagers of the

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appellant and eye-witnesses to the occurrence. They supported the prosecution case.

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 25-Sep-2023 17:37:19

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P.W.4 Ratna Kisan is a co-villager of the deceased

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who stated that while the quarrel ensued between appellant and P.W.3, he left the feast after taking his meal and he had no knowledge as to what happened thereafter.

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P.W.7 Debendra Kumar Pradhan is an independent witness who though stated to have no knowledge about the seizure but he stated to have put his signature on the seizure list vide Ext.4.

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P.W.8 Dr. Pramod Kumar Pradhan was the Assistant

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Surgeon attached to S.D. Hospital, Rairkhol who conducted postmortem examination on the dead body of the deceased on police

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requisition and proved his report vide Ext.5.

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P.W.9 Bharat Pradhan was the O.I.C. of Kisinda

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police station who took over the charge of investigation from P.W.11 and seized the bed head ticket of the appellant from the District Headquarters Hospital, Sambalpur, examined two witnesses and prayed before the Court of S.D.J.M., Rairakhol for sending the material objects to R.F.S.L. and after completion of the investigation, he submitted the charge sheet against the appellant.

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 25-Sep-2023 17:37:19

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P.W.10 Sayad Majibar Raheman was the O.I.C. of

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Kisinda police station who reduced the oral report lodged by P.W.1 into writing and took up investigation.

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P.W.11 Krushna Chandra Acharya, A.S.I. of police

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attached to Kisinda police station who took over the charge of investigation from P.W.10 as he was under the orders of transfer. He collected the post mortem report and thereafter, he delivered the charge of the case to P.W.9.

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P.W.12 Pradeep Kumar Hazira was working as Junior

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Clerk in R.F.S.L., Sambalpur. He stated that the seized objects in

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Kisinda P.S. Case No.8 dated 16.04.1999 were sent to S.F.S.L.,

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Bhubaneswar along with seized items of other cases for chemical

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examination on 12.05.2000.

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The prosecution exhibited fifteen documents. Ext.1 is

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the seizure list of gun, Ext.2 is the inquest report, Ext.3 is the seizure list of sample earth, Ext.4/1 is the seizure list of cooking utensils, Ext.5 is the post mortem report, Ext.6 is the forwarding

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letter of S.D.J.M., Rairkhol, Ext.7 is the F.I.R., Ext.8 is the spot map, Ext.9 is the report of scientific officer, Ext.10 is the dead

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body challan, Ext.11 is the command certificate, Ext.12 is the zimanama, Ext.13 is the seizure list of blood stained wearing

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 25-Sep-2023 17:37:19

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apparel of the deceased, Ext.14 is the forwarding letter of doctor and Ext.15 is the report of S.F.S.L.

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The prosecution also proved fourteen materials objects. M.O.I is the gun, M.O. II is the empty caps in plastic container, M.O. III is the lead balls (32 numbers), M.O. IV is the bottle containing explosive, M.O.V is the bottle containing charcoal, M.O.VI is the two packets containing fataka, M.O.VII is the lantern kanta, M.O.VIII is the porcupine kanta, M.O. IX is the bag, M.O.X is the blood stained earth, M.O.XI is the sample

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earth, M.O. XII is the pair of chappal, M.O.XIII is the blood

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stained dhoti and M.O.XIV is the gamuchha.

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Defence Plea :

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The defence plea of the appellant is one of denial and

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it was pleaded that a false case has been foisted against him. Defence has not examined any witness but it has exhibited one document, i.e. Ext. A, the bed head ticket of the appellant Mahadev Kisan.

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Findings of the Trial Court :

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The learned trial Court after assessing the oral as well as documentary evidence on record came to hold that the gun recovered from the spot was used in firing at the deceased which caused his death. The learned trial Court further held that

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 25-Sep-2023 17:37:19

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the plea of the appellant that it was an accidental fire, cannot be believed more so when there is no independent evidence to prove this aspect. Learned trial Court further held that in view of the evidence of P.Ws.1, 2, 3 & 5, it appears that when P.W.3 Sukru Kisan dissuaded the appellant from quarreling, the appellant became furious and left the spot. He brought out a gun after some time and fired aiming at P.W.3, but due to sudden intervention of the deceased, the deceased received gunshot injury instead of P.W.3 and succumbed to the same at the spot.

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The learned trial Court further held that the prosecution has succeeded in establishing the charge under section 302 of the I.P.C. It was further held that since previous sanction of the District Magistrate as per section 39 of the Arms Act has not been obtained, the charge under section 25 of the Arms Act in contravention of the provision under section 3 of the Arms Act would fail and accordingly, acquitted the appellant of such charge. It was further held that in view of the examination report

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of the State Forensic Science Laboratory, marked as Ext.15, the prosecution has succeeded in establishing that the appellant used the fire arm without any licence for which he is liable under section 27 of the Arms Act and accordingly, he was found guilty under section 302 of the I.P.C. and section 27 of the Arms Act.

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 25-Sep-2023 17:37:19

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Contentions of the Parties :

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Mr. B.K. Ragada, learned counsel appearing for the appellant contended that subsequent to the quarrel, on being provoked, the appellant seems to have fired gun shot at P.W.3 and he was having no intention to commit murder of the deceased and since the deceased came on the way, he accidentally received the gunshot injury. Learned counsel further argued that the evidence has come on record that the appellant did not know how to use gun and therefore, it cannot be said that he aimed at the right side chest of the deceased and fired gunshot. Learned counsel further argued that in the F.I.R., it is mentioned that while firing gunshot, the appellant was at an approximate distance of thirty feet away from the deceased and the doctor (P.W.8), who conducted the post mortem examination has stated that the gunshot was made at a distance ranging from one to two meters and thus, the ocular testimony runs contrary to the medical evidence and therefore, it is a fit case

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where either benefit of doubt should be extended in favour of the appellant or the conviction of the appellant under section 302 of the I.P.C. be altered to one under section 304 Part-II of the I.P.C. Learned counsel relied upon the decisions of the Hon’ble Supreme Court in the cases of Kashi Ram and others -Vrs.-

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 25-Sep-2023 17:37:19

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State of M.P. reported in A.I.R. 2001 Supreme Court 2902 , Rajbir Singh –Vrs.- State of U.P. and another reported in (2006) 4 Supreme Court Cases 51 and Jagpal Singh and another -Vrs.- State of Punjab reported in 1991 Supp (1) Supreme Court Cases 549 .

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Mr. Rajesh Tripathy, learned Additional Standing Counsel appearing for the State of Odisha, on the other hand, supported the impugned judgment and contended that the eye witnesses have consistently stated that during the quarrel, the appellant left the spot and when he came back, he was armed with a gun and thus he came prepared to the spot to assault P.W.3 and then he fired at P.W.3 but since P.W.3 remained behind the deceased, the gunshot hit the deceased on the right side of his chest and in view of the doctrine of ‘transfer of malice’ as imbibed under section 301 of the I.P.C., the learned trial Court was justified in convicting the appellant under section 302 of the I.P.C. Learned counsel further argued that the appellant

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was found at the spot in an injured condition and the weapon of offence i.e. the gun was also seized from the spot and the evidence of the prosecution witnesses having not been shaken at all in the cross-examination and since the doctor (P.W.8), who conducted the post mortem examination, stated that the cause

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 25-Sep-2023 17:37:19

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of death was due to shock and haemorrhage as a result of injuries on vital organ like lung and the injuries are possible by gunshot and therefore, the medical evidence corroborates the ocular version of P.Ws.1, 2, 3 and 5 and thus, the appeal should be dismissed.

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Post-mortem report findings :

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The doctor (P.W.8), who conducted the post mortem examination on the dead body of the deceased on 18.04.1999

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noticed the following injuries:

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1 .Lacerated wound with guttering of skin subcutaneous tissue and muscles present over an area of upper part of right arm of size 2 “ X 1 ½ “ X bone deep transversely placed 2 “ below the tip of the shoulder. The medial end is wider than lateral end under the wound sort tissue, muscle and shaft of humerus turned to multiple pieces. The margin of the wound are charred and blacken.

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2 . A penetrating and lacerated hole entering into the chest cavity of size 3” X 2 ½” over right side of chest 1” below the clavicle. Margins are lacerated charred and blacken.

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3 . Five lacerated perforating wound of size 1/2” X 1/2" each with everted margin placed in an area of 3” diameter below the medial margin of

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 25-Sep-2023 17:37:19

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right scapula on the back. These injuries are likely to be exit wounds.

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Upon dissection, P.W.8 found the following injures:

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“Right pleural cavity contains about 2 liters of blood. Right lung is lacerated underline the external injuries no.2 and 3.Second, third and fourth ribs right side are fractured underline the external injury no.2. A plug of coir (foreign body) is found in right side chest cavity in between pleura and lung on anterior surface. Right pleura ruptured in multiple sites. All the chambers of the heart were empty. Vital organs like spleen, liver, kidney and brain were intact and pale.”

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P.W.8 further stated that all the injuries were

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consistent with the possibility of fire arm injury and ante mortem in nature and he further stated that the death was caused due to shock and hemorrhage as a result of injuries to the vital organ and time of death is within 36 to 48 hours of the post-mortem examination and the injuries were sufficient to cause death. He proved the post mortem report (Ext.5).

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Learned counsel for the appellant has not disputed that it is a case of homicidal death. After going through the inquest report (Ext.2), post mortem report (Ext.5) and the evidence of the doctor (P.W.8), we are also of the humble view

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 25-Sep-2023 17:37:19

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that the prosecution has successfully proved that the deceased met with homicidal death on account of gunshot injury and the finding of the learned trial Court in that respect is quite justified.

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Evidence of the eye witnesses :

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Now let us analyse the evidence of the eye witnesses carefully to see whether it is believable or not. It appears that P.Ws.1, 2, 3 and 5 are the eye witnesses to the occurrence. P.W.1 is the son of the deceased whereas the other eye witnesses are co-villagers. P.W.1 has stated that since his younger brother Ganapati Kisan (P.W.6) had killed a bullock, he was hosting a feast on the bank of river Sankha on the relevant day. About thirty to thirty five persons of his caste were present at the feast and they were all sitting to take the meal and at that time, the appellant Mahadev Kisan raised commotion on the issue of service of meat curry to him. He further stated that P.W.3 Sukru Kisan who was the elder brother of the father of the informant intervened and tried to dissuade the appellant from his indulgence of quarrelling for nothing for which there was a hot exchange of words between P.W.3 and the appellant. The appellant left the spot and returned after sometime with a gun and threatened P.W.3 to fire at him, but P.W.3 ran and took shelter behind the back of the deceased and when the deceased

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 25-Sep-2023 17:37:19

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tried to pacify the appellant, without paying any heed, the appellant fired at P.W.3 but the bullet hit at the right side chest of the deceased and resultantly, he fell down on the ground and died instantaneously. He further stated that the persons present at the place overpowered the appellant and kept him captive till the arrival of the police. In the cross-examination of P.W.1, he stated that he had never seen the appellant moving with or using the gun prior to the occurrence and he had no knowledge that the appellant possessed a gun. He further submitted that the appellant did not know how to use the gun. He further stated that the appellant was also invited to the feast. A suggestion was given to P.W.1 that when the appellant quarreled unnecessarily, the deceased brought out the gun from the place of concealment and tried to terrify the appellant by showing the gun to him and that the appellant tried to snatch away the gun from the deceased leading to the tussle between the deceased and the appellant and in that process, the pellets went off to hit the

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deceased as well as the appellant, but P.W.1 denied such suggestion. He has also denied the suggestion given by the learned defence counsel that the death of the deceased was accidental in nature. The other eye witnesses have almost stated in similar tone regarding sudden quarrel between the appellant and P.W.3 and the appellant leaving the spot, coming back after

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 25-Sep-2023 17:37:19

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some time with a gun. They also stated that there was intervention from the side of the deceased to dissuade the appellant and then the appellant fired at P.W.3 but it hit on the right side chest of the deceased. In spite of incisive and searching cross-examination, the credibility of the evidence of the eye witnesses has not even slightly shaken or impaired and impeached and nothing has been elicited to disbelieve their testimony.

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Ocular evidence vis-à-vis medical evidence :

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The doctor (P.W.8) who conducted the post mortem examination has stated that the gunshot must have been made to the deceased from a distance ranging from one meter to two meters. In the F.I.R., it is stated that the appellant was standing at a distance of thirty feet from P.W.3 and was threatening him to kill holding the pistol and at that time, the deceased intervened and tried to dissuade the appellant when the firing took place. None of the eye witnesses have been questioned by the learned defence counsel about the distance between the appellant and the deceased at the spot when the firing was actually made. Even the informant (P.W.1) was not confronted with the F.I.R. version by the learned defence counsel. There is nothing in the F.I.R. about the distance between the appellant

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 25-Sep-2023 17:37:19

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and the deceased when the firing was actually made. The F.I.R. cannot be used as a substantive piece of evidence. It can be used for the purpose of contradiction and corroboration to the evidence of the informant and not for checking the creditworthiness of any other witness. If there are any such omissions or contradictions in the F.I.R. with reference to the evidence adduced by the informant in Court during trial which the defence or the prosecution wants to prove, then at first, his attention is to be drawn to the relevant parts of the F.I.R. in

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accordance with procedure laid down in section 145 of the Evidence Act and then if necessary, to prove the contradictions through I.O. if it is an oral report reduced to writing. The attention of the informant is to be drawn for the purpose of giving reasonable opportunity to him to explain it. If the informant admits the contents, such admission can be relied upon by either side for proving the contradiction. If however, the informant denies having made such a statement in the F.I.R. which is reduced into writing on the oral report of the informant by police, when the Investigating Officer comes to the witness box, he should be questioned as to whether that particular statement had been made at the time the oral report is made and it was reduced to writing and treated as F.I.R. and obviously the Investigating Officer after refreshing his memory looking at

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 25-Sep-2023 17:37:19

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the F.I.R. would answer. Such answer would prove the contradictions. When a confrontation is made to the informant relating to contradictions in the F.I.R., not only the Public Prosecutor but also the Presiding Officer is expected to remain alert to see in fact there are any such contradictions or not. If it is a written report presented by the informant and either the Public Prosecutor or the learned defence counsel wants to prove any omissions or contradictions in the F.I.R. with reference to the evidence adduced by the informant in Court during trial,

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drawing the attention of the informant to that part is sufficient and it is not necessary again to prove the same through the I.O. as it is a written report and not an oral report reduced to writing and in such a case, the Court can verify whether the contradictions exist or not and utilize it as omission or contradiction if actually it is there.

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In the case in hand, the same having not been done and nothing has been brought out on record about the actual distance between the appellant and the deceased at the time of firing of gunshot, we cannot disbelieve the evidence of eye witnesses holding that when the firing was made, the appellant was at a distance of thirty feet from the deceased and therefore, the nature of injury noticed by the doctor (P.W.8) was not

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 25-Sep-2023 17:37:19

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possible due to such firing. The gun and the aluminum caps and lead balls which were seized at the spot were sent for ballistics opinion and the report which has been marked as Ext.15, indicates that the exhibit marked as ‘A’ is a country-made S.B.M.L. gun having all essential parts of a firearm such as trigger, trigger guard, nipple, hammer, barrel, stock etc. On examination, it was found that the gun (M.O.I) was in a working condition and capable of discharging projectiles and therefore, it was a firearm as defined under the Arms Act. The report further

¶175

reveals that the chemical examination report of the barrel washings of the country-made gun revealed the presence of gun powder (black powder) residue showing that the gun was used for firing and therefore, in our humble view, the prosecution has proved that it was on account of gunshot that the deceased sustained the injury on the right side chest and the death took place on account of such injury and there is no contradiction between the ocular testimony and medical evidence.

¶176

Whether the act of the appellant amounts to culpable

¶177

homicide not amounting to murder :

¶178

Now, the question crops up for consideration whether the act committed by the appellant would come within the purview of section 302 of the I.P.C. or any lesser offence.

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 25-Sep-2023 17:37:19

¶182

Learned counsel for the appellant placed reliance on the judgment of the Hon’ble Supreme Court in the case of Kashi Ram (supra) wherein it is held as follows:

¶183

“31. The only accused whose act needs to be determined for the purpose of finding out what offence, if any, he has committed, is accused Ramesh. Exception II to Section 300 IPC provides that culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he has exercised such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. We have found the deceased Brindawan having sustained injury by gun shot fired by accused Ramesh. Such injury was caused when the members of the prosecution party were fleeing away though to begin with the accused Ramesh had available to him the right of private defence of person. The right was exceeded and therefore the act of accused Ramesh would be covered by Exception II to Section 300 Of IPC. The injuries caused to Brindawan show the pellets having injured lower part of the body of Brindawan. It cannot be said that accused Ramesh intended to caused death or cause such bodily injury as was likely to

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 25-Sep-2023 17:37:19

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¶188

cause death though he should be attributed with the knowledge that the injury caused by him was likely to cause death. His individual act of causing injury to deceased Brindawan is therefore punishable under Section 304 Part II IPC. So also his subsequent fire aimed at complainant Sundera but which accidentally hit Jamuni Bai Dhoban would also be punishable under Section 304 Part II of the IPC with the aid of Section 301 IPC. If he had injured the complainant Sundera, he would have been liable to be convicted under Section 304 Part II IPC. In spite of complainant Sunder alias Sundera having escaped unhurt and yet Jamuni Bai Dhoban having been injured tough not aimed at, on the doctrine of 'transferred malice' as contained in Section 301 IPC, the liability of the accused remains the same. In the F.I.R., the version of Sundera was that Jamuni Bai had intervened to rescue him when she got injured. This story was abandoned by Sundera whilst in witness box and he maintained that though the second shot by accused Ramesh was aimed at him it hit Jamuni Bai instead of him. No prosecution witness states where the gun held by accused Ramesh was aimed at. Prosecution version coming through the three eye witnesses that accused Ramesh was in standing posture, facing them, when he fired the gun, is not supported by, rather belied by, medical

¶189

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 25-Sep-2023 17:37:19

¶192

evidence. The fact remains that Jamuni Bai was neither aimed at nor intended to be harmed by accused Ramesh. In case of accidental injury attracting applicability of 'transferred malice' under Section 301 IPC and having held that the act of the accused was covered by Section 304 IPC, the Court should lean in favour of convicting the accused under Part-II of Section 304 if it is in doubt as to which one of the two parts of Section 304 IPC would be attracted. This would be consistent with the basic tenet of extending benefit of doubt in criminal jurisprudence. Accordingly, we hold the accused Ramesh guilty under Section 304 Part-II for causing the death of Jamuni Bai.”

¶193

Learned counsel further placed reliance in the case of Jagpal Singh (supra), wherein it is held as follows:

¶194

“3. On going through the entire evidence and other connected records placed before us, we are fortified in holding that the first appellant, Jagpal Singh shot at Surjit Kaur even though he aimed at only Kapur Singh. Therefore, under the doctrine of transfer of malice as contemplated under Section 301 of the IPC, Jagpal Singh has made himself punishable under Section 302 IPC (simplicitor). So far as the rest of the appellants are concerned, the allegations are omnibus. On a careful analysis of the entire evidence particularly of Udham Singh, we are of the

¶195

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 25-Sep-2023 17:37:19

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¶199

opinion that it is not safe to convict the other two appellants, namely, Baldev Singh and Gurmel Singh s/o Chanan Singh.”

¶200

Learned counsel further placed reliance in the case of

¶201

Rajbir Singh (supra), wherein it is held as follows:

¶202

“7. The fact that there was no intention to cause injury to Pooja Balmiki and she was accidentally hit can make no difference as according to the version of the prosecution, the accused intended to cause injuries by firearm to Hoti Lal and in attempting to carry out the same, also caused injuries to her. The reasons given by the High Court for quashing the charges are, therefore, wholly erroneous in law and cannot be sustained.”

¶203

In the case in hand, on analysing the evidence on

¶204

record, it appears that there was no previous dispute between the appellant and the deceased. It further appears that the

¶205

occurrence took place all of a sudden and some kind of disturbance took place in the feast for which there was quarrel

¶206

between the appellant and P.W.3 and there was a hot exchange of words between them, following which, the appellant left the place and after some time, he came to the spot with a gun. It further appears from the evidence on record that the appellant did not know how to use a gun. After reaching at the spot, the

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 25-Sep-2023 17:37:19

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appellant threatened P.W.3 to kill and P.W.3 went and hid himself behind the back of the deceased and it appears that the appellant wanted to terrify the people around and till that point of time, he had not stated anything to the deceased but when the deceased tried to pacify and intervened, the appellant fired at P.W.3 which unfortunately hit at the right side chest of the deceased. In the case of Vineet Kumar Chauhan -Vrs.- State

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of Uttar Pradesh reported in (2007) 14 Supreme Court

¶213

Cases 660 , it is held as follows:

¶214

“16. The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has been vividly brought out by this Court in State of Andhra Pradesh v. Rayavarapu Punnayya . It has been observed that the safest way of approach to the interpretation and application of Sections 299 and 300 IPC is to keep in focus the key words used in various clauses of the said Sections. Minutely comparing each of the clauses of Sections 299 and 300 IPC and drawing support from the decisions of this Court in Virsa Singh v. State of Punjab and Rajwant v. State of Kerala , speaking for the Court, R.S. Sarkaria, J. neatly brought out the points of distinction between the two offences, which have been time and again reiterated. Having done so, the court said that whenever a Court is confronted with

¶215

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 25-Sep-2023 17:37:19

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the question whether the offence is 'murder' or 'culpable homicide not amounting to murder', on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to 'culpable homicide' as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300, Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of 'murder' contained in Section 300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be 'culpable homicide not amounting to murder',

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 25-Sep-2023 17:37:19

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¶224

punishable under the first part of Section 304, Penal Code. It was, however, clarified that these were only broad guidelines to facilitate the task of the Court and not cast-iron imperative.

¶225

Reverting to the facts in hand, as noted above, it stands proved that there being a direct causal connection between the hitting of the bullet, fired by the appellant, to the deceased and her death, the death of the deceased was caused by the appellant. However, having regard to the circumstances, briefly enumerated above, particularly the manner in which the appellant fired the shots, in our view, the appellant could not be attributed the mens rea requisite for bringing the case under Clause (3) of Section 300 IPC. Concededly, there was no enmity between the parties and there is no allegation of the prosecution that before the occurrence, the appellant had pre-meditated the crime of murder. We are inclined to think that having faced some sort of hostile attitude from the family of the deceased over the cable connection, a sudden quarrel took place between the appellant and the son of the deceased, on account of heat of passion, the appellant went home; took out his father's revolver and started firing indiscriminately, and unfortunately one of the bullets hit the deceased on her chin. At the most, it can be said that he had the knowledge that the use of revolver was likely to cause

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 25-Sep-2023 17:37:19

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death and, as such, the present case would fall within the third clause of Section 299 IPC. Thus, in our opinion, the offence committed by the appellant was only 'culpable homicide not amounting to murder'. Under these circumstances, we are inclined to bring down the offence from first degree 'murder' to 'culpable homicide not amounting to murder', punishable under the second part of Section 304 IPC.

¶231

Consequently, we partly allow the appeal; set aside the conviction of the appellant under Section 302 IPC and instead convict him under Section 304 Part II IPC. The sentence of rigorous imprisonment for five years would meet the ends of justice.”

¶232

In view of the ratio laid down in the case of Vineet

¶233

Kumar Chauhan (supra), taking into account the factual

¶234

scenario of the case and the evidence of the eye witnesses that

¶235

when a sudden quarrel ensued between the appellant and P.W.3 during the feast, the appellant left the spot and when he came back to the spot holding a gun and tried to terrify others

¶236

including P.W.3, the deceased suddenly intervened and the appellant fired single shot at P.W.3 which hit at the right side of his chest of the deceased, we are of the humble view that the act

¶237

was done in the heat of passion without any premeditation during quarrel and when the evidence on record indicates that

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 25-Sep-2023 17:37:19

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¶242

the appellant was not an expert in using gun, it cannot be said the appellant aimed at the right side chest of the deceased and fired gun shot.

¶243

It is correct that the appellant never intended to kill the deceased nor he knew himself to be likely to cause, but his act in the case would be covered by section 301 of I.P.C. which relates to doctrine of transfer of malice or the transmigration of motive. Under the section, if ‘A’ intends to kill ‘B’, but kills ‘C’ whose death he neither intends nor knows himself to be likely to

¶244

cause, the intention to kill ‘C’ is by law attributed to him. If ‘A’ aims his shot at ‘B’, but it misses ‘B’ either because ‘B’ moves out of the range of the shot or because the shot misses the mark and hits some other person ‘C’, whether within sight or out of sight, under section 301 of I.P.C., ‘A’ is deemed to have hit ‘C’ with the intention to kill him. What is to be noticed is that to invoke section 301 of I.P.C., ‘A’ shall not have any intention to cause the death or the knowledge that he is likely to cause the

¶245

death of ‘C’. This section lays down that culpable homicide may be committed by causing death of a person whom the offender neither intended nor knew himself to be likely to kill. If the killing takes place in the course of doing an act which an offender

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 25-Sep-2023 17:37:19

¶250

intends or knows to be likely to cause death, it must be treated as if the real intention of the killer had been actually carried out.

¶251

We are of the humble view that the offence committed by the appellant would come within the definition of ‘culpable homicide not amounting to murder’ since it seems to have been done during quarrel in the heat of passion without any premeditation and therefore, we are inclined to bring down the conviction of the appellant from first degree of murder to culpable homicide not amounting to murder punishable under section 304 Part-II of the I.P.C.

¶252

In the result, the JCRLA is partly allowed.

¶253

The order of conviction of the appellant under section 302 of the I.P.C. is hereby set aside and instead, he is convicted under section 304 Part-II of the I.P.C. So far as offence under section 27 of the Arms Act is concerned, the evidence is consistent that the appellant used the gun which was recovered at the spot and the same was found to be a firearm on ballistic examination and therefore, the conviction of the appellant for such offence by the learned trial Court stands confirmed.

¶254

It appears from the record that the appellant was initially taken into judicial custody on 22.04.1999 and directed to be released on bail as per order dated 31.07.2000 and after

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 25-Sep-2023 17:37:19

¶258

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pronouncement of the judgment on 25.02.2005, he was again taken into custody and subsequently, released on bail by this Court vide order dated 09.08.2011. As such, the appellant has remained in custody during trial as well after pronouncement of the judgment for almost seven years and eight months and therefore, taking into account the total period of pre-trial and post-trial detention, for both the offences i.e. section 304 Part-II I.P.C. and section 27 of Arms Act, the appellant is sentenced to period of imprisonment already undergone. The appellant, who is

¶260

on bail by virtue of the order of this Court, need not surrender in Court. He is discharged from liability of his bail bonds. The personal bonds and the surety bonds hereby stand cancelled. The trial Court records with a copy of this judgment be sent down to the concerned Court forthwith for information. .......................... S.K. Sahoo, J.

¶261

.......................... S.S. Mishra, J.

¶262

Orissa High Court, Cuttack The 12^th September 2023/Sipun

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Mahadev Kisan v. State

Case brief

What is this about?

What did the court decide?

Mahadev Kisan v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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