Dukha Vs State

IN THE HIGH COURT OF ORISSA AT CUTTACK

CRA No. 326 of 1998

(Arising out of th e Judgment of conviction dated 25^th o f November, 1987, passed by S ri A. P. Das, 2^nd Addl. Sessions Judg e , Cuttack, in S. T. No.78/1996 ( 6/96), for the offence under section 3 0 2 and 307 of the Indian Penal C ode, 1860)

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Dukha @ Krushna Behera

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…. Appellant

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Mr. Devashis Pan d a, Advocate

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-versus-

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State of Odisha

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…. Respondent

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Mr. Aurovinda M o hanty, ASC

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CORAM:

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THE HON’BLE MR. JUSTICE S. K. SAHOO THE HON’BLE MR. JUSTICE CHITTARANJAN DASH

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Date of Judgment: 25.09.2025

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Chittaranjan Dash, J.

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This Ap p eal is directed against the judgme n t and order dated 25.11.199 8 passed by the learned 2^nd Additi o nal Sessions Judge, Cuttack i n S.T. Case No.78 of 1996 (6/96), wherein the Appellant havin g been found guilty in the offences u nder Section 302/307 of IPC has been sentenced to undergo impr i sonment for life for the offe n ce under Section 302 of IPC whil e no separate sentence has be e n imposed for the offence under Section 307 of IPC.

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The brie f facts giving rise to the present Appe a l are that the Appellant, bein g the driver of a Mini Truck bearing Registration No. OR-05C-16 4 6, is alleged to have intentionally cau s ed the death

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of four person s , namely, Alekha Samal, Rajib N arayan Das, Hrushikesh Rou t , and Golakha Chandra Nayak, by c r ushing them under the whee l s of the said truck, which he drov e rashly and rammed into th e footpath in front of certain shops a t the market, where people h a d assembled for marketing. The f u rther charge against the Appellant is that he attempted to commit murder of Kalia @ Suk a nta Patra (P.W.15), Dharua Sa h u (P.W.10) Rabindranath Sa h u (P.W.8) and Bula @ Sridhar Beher a (P.W.9). It further appears that the Appellant had married to K uni Behera (P.W.11), but their matrimonial life was strained, ow i ng to which his wife often st a yed in her parental home. The Appell a nt suspected that Kalia @ S u kanta Patra (P.W.15), a distant uncl e of his wife, had developed an illicit relationship with her. De s pite several efforts by the A p pellant to bring back his wife to the matrimonial home, the same proved futile, and he attributed this f ailure to the alleged interfer e nce of P.W.15. On 30.03.1995, the date of occurrence, the A ppellant drove the aforesaid Mini T ruck to Pira Bazar from Cuttack, got down, and made enquirie s from some persons regardin g his dispute in securing the return o f his wife. At that time, he c a me across P.W.15 who was prese n t there, and abused him alle g ing that he was responsible for the d iscord in his matrimonial lif e . A quarrel ensued between the A p pellant and P.W.15, during w hich the Appellant, in a fit of anger, t hreatened to crush P.W.15 u n der the wheels of the truck and l e ft the spot. Thereafter, the A ppellant drove the truck towards Sal i pur but soon returned to Pira B azar and, while driving the vehicle a t a very high speed, rammed i t into a group of people standing in front of the shop of one J y oti Mohapatra @ Chandia, allege d ly targeting

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P.W.15, who m a naged to jump aside and escaped. H owever, the truck ran over t h e aforesaid four persons, who died at the spot, and also caused se v ere injuries to four others. The A p pellant then abandoned the t ruck in a nearby field. On the b a sis of these allegations, one P rakash Chandra Behera (P.W.19) lod g ed a written report on the sa m e day, whereupon Jagatpur P.S. C a se No.32 of 1995 was registe r ed on 30.03.1995.

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In cours e of the investigation, the police arrive d at the spot, held inquest over the dead bodies, sent them for post-mortem examination, is s ued injury requisitions for the inj u red persons, examined witne s ses, seized the vehicle, obtained the M .V.I. report, apprehended the Appellant, and upon completion of i nvestigation, submitted charg e -sheet.

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The ple a of the Appellant is one of complete denial and false allegations . The Appellant also pleaded that on the relevant day, he was not d riving the Mini truck in question but k ept the same in the field wher e upon it was seized by the police.

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To brin g home the charges, the prosecuti o n examined twenty witnesse s in all. While P.W.1 is the betel shop owner, situated at Pir a bazaar and occurrence witness, P .W.2 is an occurrence witn e ss, being a teacher in Madrasa. P. W .3 is a local person and is al s o an eye witness to the occurrence p resent at the spot. P.W.4 too is a businessman, having his garage at Pira bazar and an occurren c e witness. P.W.5 is also an occurren c e witness so also P.W.6, P.W . 7, P.W.8, P.W.9. P.W.9 and P.W.10 a r e the injured witnesses, P.W.11 is the occurrence witnesses, P. W .12 is the witnesses to th e seizure, P.W.13 is the doctor w h o conducted

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autopsy over t h e dead bodies of Rajib Narayan D ash, Alekha Samal, Hrusikes h Rout and Golokha Chandra Nayak. P .W.14 is the witness to the i n quest, P.W.15 is Kalia @ Sukanta K u mar Patra, a distant relative of the wife of the Appellant allegedly t o have illicit affair with the wife of the Appellant, P.W.16 is t he scientific officer, P.W.17 is the Assistant Surgeon who condu c ted medical examination in r e spect to the injured Sridhar Behura, P .W.18 is the MVI, P.W.19 is a contractor and an occurrence witnes s and P.W.20 is the I.O.

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The lear n ed trial court, having assessed the ev i dence found the Appellant t o have driven the vehicle in a rash a nd negligent manner intentio n ally to crush over the persons present i n the market while targeting t o do away with the life of P.W.15, b ased on the evidence of the eye witness account as well as the circumstances appearing in the relevant time. The court also held th e death of the deceased to be h o micidal in nature.

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In cours e of hearing, Mr. Devashis Panda, le a rned counsel for the Appella n t, assailed the impugned judgment a n d order and submitted that t h e evidence of P.W.15 assumes great i m portance in this case, as the A ppellant allegedly bore ill feeling to w ards him on suspicion of ha v ing an illicit relationship with his w i fe (P.W.11), who had been s taying at her parental house for a b out a year. According to M r. Panda, the testimony of P.W.15 is wholly unreliable, inas m uch as it finds no corroboration fr o m any other witness, includi n g the injured witnesses, who were al l egedly taken by him to the ho s pital. P.W.11, the estranged wife of t h e Appellant, admitted that P.W.15 was her agnatic uncle and w as casually

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visiting her pare n ts’ place. However, the Appellant ha d objected to his presence. It w as argued that the alleged motive fo r commission of the crime, n a mely the supposed amorous relation s hip between P.W.11 and P. W .15, has not been proved, as no ot h er witnesses including P.Ws.8, 9, and 10 supported the claim o f a quarrel between the Appellant and P.W.15 prior to the incident.

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Mr. Pan d a further submitted that although P. W .15 claimed to have receive d injuries, but this was not corroborat e d by any of the occurrence witnesses, nor has any medical e v idence been adduced to prov e the same. None of the eyewitnesses p resent at the scene stated th a t P.W.15 sustained any injury or a ttributed the Appellant as the driver of the offending vehicle. Thu s , neither the alleged motive n o r the version of P.W.15 can be safel y relied upon. It was argued that the evidence on record indic a tes that the Appellant had n o intention to cause the death of t he deceased persons, who su c cumbed to the injuries sustained afte r being hit by the Mini Truck. T herefore, the charge under Section 3 0 2 IPC is not sustainable. Instead, the Appellant ought to have b een charged under Section 3 0 1 IPC, which provides for punishme n t of culpable homicide when death is caused to a person other t han the one intended.

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Assailin g the conviction, Mr. Panda further ar g ued that the injured witnesse s never attributed the accident to the A ppellant. He pointed out tha t no tyre marks were seized from the spot for comparison wit h the tyres of the Mini Truck, which w as allegedly used in the crim e . He relied upon the decision in Varun Choudhry vs. State of Rajasthan , reported in (2011) 12 SCC 545 , wherein it

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was held that u nless tyre marks are seized from t he spot and compared with t h ose of the vehicle, it cannot be conclusively held that the recovered vehicle was used for commission o f the offence. In the present c a se, no such comparison was made, a nd therefore the use of the M ini Truck by the Appellant is not est a blished. Mr. Panda also sub m itted that had P.W.15 really been the target of the Appellant, he w ould have at least suffered some i njuries. The absence of any i njury on his person renders his vers i on unnatural and untrustwort h y. His conduct in neither reporting the incident immediately to the police, nor undergoing medical examination, and remaining u ntraceable on 03.04.1995, further c asts serious doubt on his test i mony.

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Placing r eliance on the cross-examination o f the MVI (P.W.18), who a d mitted that mechanical failure of the v ehicle could not be ruled out , Mr. Panda contended that the prose c ution case is further weakene d . He argued that the evidence makes it apparent that the Appella n t had no intention to cause the deat h of the four deceased perso n s i.e. Rajib Narayan Dash, Al e kha Samal, Hrushikesh Ro u t, and Golakha Chandra Nayak. A t best, the prosecution cas e is that the Appellant intended to ta r get P.W.15, which, even if a ccepted, would attract Section 301 IPC and not Section 302 IPC.

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As regar d s the conviction under Section 307 IP C , Mr. Panda submitted that i t was based on the alleged injuries sustained by Rabindranath S ahu (P.W.8), Sridhar Behera ( P .W.9), and Dharinidhar Sa h u (P.W.10), as well as P.W.15 w h o allegedly managed to esc ap e. However, P.W.8, though testifyin g that he had

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sustained injuries on his head and ear and was adm i tted to SCB Medical College & Hospital, did not speak of P.W.1 5 ’s presence. P.W.9 stated th a t he sustained a fracture in his right leg and was admitted in the s ame hospital, but again did not spea k of P.W.15’s presence. Both witnesses were declared hostile. The doctor (P.W.17) prove d the admission of P.Ws.8 and 9, but the injury of P.W.9 was limit e d to pain over his right knee. No inju r y report was ever proved for P .W.15.

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According to Mr. Panda, the absence of c orroboration regarding the pr e sence of injury of P.W.15, coupled w i th the failure to collect tyre m a rks from the spot, establishes that P. W .15 is a gotup witness and his testimony is unreliable and as such infirm evidence, the co n viction of the Appellant cannot stand. Therefore, it was submitted t h at the impugned judgment of the lear n ed trial court is based on no evidence and is liable to be set a s ide, and the Appellant is enti t led to an acquittal.

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Mr. Aur o vinda Mohanty, learned counsel for the State, on the other han d , submitted that the prosecution has clearly established that the Appellant was driving the offen d ing vehicle, i.e., the Mini Tr u ck bearing Registration No. OR-05C - 1646, which crushed four per s ons to death and caused injuries to fo u r others. He relied upon the testimony of P.Ws.3, 4, 6, 8, an d 15, which, according to him, unequivocally prove the pres e nce of the Appellant at the wheel. He contended that P.W.15 is a natural and trustworthy wit n ess whose presence at Pira Bazar was neither doubtful nor u n expected. The statement of P.W.15, both in examination-in- c hief and in cross-examination, substantially

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corroborates his p resence at the scene and his account o f the quarrel with the Appell a nt. His testimony establishes that t h e Appellant, being enraged d u ring the quarrel, threatened to crush h im under the wheels of the tr u ck, left the place, and soon returne d to drive the vehicle at great speed towards the footpath where P.W.15 and others were stan d ing. This version, according to Mr. M ohanty, goes uncontroverted a nd directly implicates the Appellant as the driver of the vehicle an d the author of the crime.

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It was f u rther argued that all the eyewitness e s, including P.Ws.2, 3, 4, 5, 6, 8, 9, and 15, have consistently d escribed the manner and seq u ence of the occurrence and specifica l ly identified the Appellant as the driver who drove the vehicle into the footpath, resulting in mul t iple deaths and injuries. The prosec u tion case is further reinforced by the evidence of P.W.18, the M otor Vehicle Inspector, who c a tegorically deposed that the offendin g vehicle had no mechanical d efect and was in good running condition, thereby ruling out the possibility of accidental failure. Acco r ding to Mr. Mohanty, this p r oves beyond doubt that the Appell a nt drove the truck with the requisite intention to cause the death o f P.W.15, and in the process c aused the death of four persons an d injuries to others. Finally, M r. Mohanty contended that the testi m onies of the eyewitnesses ar e cogent, reliable, and consistent wit h each other and with the me d ical and scientific evidence. The cum u lative effect of the evidenc e leads to the inescapable conclus i on that the Appellant acted with full knowledge and intention, making him liable for the of f ence of murder. The learned trial co u rt, therefore,

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rightly held hi m guilty, and no interference with t h e impugned judgment is war r anted.

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Having h eard the learned counsel for both the P arties, at the outset, it is necessary to examine the medical eviden c e in order to ascertain the ca u se of death of the deceased and t h e nature of injuries sustaine d by the injured witnesses. From the testimony of P.W.13, Dr. Mi n ati Patnaik, it stands established that f our persons, namely Rajib N a rayan Dash, Alekha Samal, Hrushikesh Rout, and Golakha Chandr a Nayak, died on account of injuries sustained by them, which we r e opined to be ante-mortem in natur e and caused by hard and blu n t force impact. The doctor further opi n ed that such injuries were fat a l in the ordinary course of nature and could jointly and severally b e occasioned in a case of dashing b y a running vehicle.

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In so far a s the injured witnesses are concerned, P.W.20, the Investigating O fficer, issued requisition for their medical examination and obtained the bed-head tickets of P.W.8 and P.W.9. P.W.17, the A s sistant Surgeon in the Accident U nit of the Orthopaedics D e partment, SCB Medical College, Cuttack, deposed that on 30.03.19 9 5, P.W.8 was admitted with complai n ts of pain in both knees and t h e left elbow. He proved the bed-hea d ticket under Ext.10, showing that P.W.8 remained under treatment as an indoor patient from 30. 0 3.1995 to 07.04.1995.

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Consequ e ntly, it is significant to note that the defence has not disputed eith e r the nature of the injuries sustained b y the injured witnesses (exce p t in relation to P.W.15) or the deat h of the four deceased person s named above. In view of such admi t ted position,

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we consider it u nnecessary to burden this judgment with further elaboration on t h is aspect, as the fact of homicidal d eath and the injuries sustain e d by the injured stand establis h ed beyond controversy.

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The ent i re prosecution case rests substant i ally on the account of the e y ewitnesses. The prosecution examin e d P.Ws.2, 3, 4, 6, 7, 8, 9, 10, a nd P.W.15 as occurrence witnesses. H owever, it is pertinent to note that P.Ws.2, 3, 4, 6, 8, 9, and 10 di d not support the prosecution case in material particulars and w ere declared hostile, thereby necessitating their cross-examina t ion by the prosecution.

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In this backdrop, the primary issue tha t arises for consideration be f ore this Court is whether the death of the deceased persons was th e result of an intentional act on th e part of the Appellant, done with the intention of causing death o r of causing such bodily inj u ry as the Appellant knew to be li k ely to cause death, or whet h er the incident was the result of any other circumstance sh o rt of such intention.

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In order to appreciate the rival contentions an d to examine whether the pro s ecution has succeeded in proving its case beyond reasonable doub t , it becomes necessary to advert to th e evidence of the material wit n esses, as follows –

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P.W.2 d e posed that he knew the deceased per s ons, namely, Alekha Samal, R ajib Das, Hrushikesh Rout, and Go l akha Nayak, but he did not k n ow either the injured Kalia @ Sukant a Patra or the Appellant. He s t ated that the occurrence took place more than a year back at Jag a tpur Peer Bazar. His house being sit u ated at Peer

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Bazar, on hearing commotion, he came to the road a n d found four dead bodies lyi n g there, having been crushed by a vehicle. He, however, expre s sed no knowledge about how the incident had occurred. Conse q uently, the witness was declared h o stile by the learned Public P r osecutor. He denied all suggestions p ut to him in relation to the ci r cumstances of the case.

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P.W.3 , a co-villager, stated that he knew the Appellant as the driver of th e Mini Truck bearing Registration N o. OR-05C1646. He also k n ew the deceased persons, namely A l ekha Samal, Rajib Das, Hrus h ikesh Rout, and Golakha Nayak, but d id not know the injured Kalia @ Sukanta Patra. He deposed that th e incident had occurred more t h an a year ago. In the evening, the A p pellant came driving the afor e said Mini Truck from the Salipur sid e , swerved to the side of the road in front of the shop of P.W. 1 , where the aforesaid four d e ceased persons and others were stan d ing, and ran over them und e r its wheels. As a result, the dece a sed persons succumbed to t heir injuries and three more perso n s sustained injuries in the in c ident. The deceased and the injured w ere taken to SCB Medical C o llege & Hospital, Cuttack. Thereafte r , the witness was declared hostile by the learned Public Prosecuto r and denied the suggestions p ut to him with regard to the circums t ances of the case.

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P.W.4 st a ted that he knew the Appellant but d id not know his wife, Kuni. H e knew the deceased persons, thou g h he did not know the injure d Kalia @ Sukanta Patra. He runs a g a rage at Peer Bazar and expla i ned the occurrence in the same man n er as P.Ws.2 and 3, namely t h at the deceased and the injured wer e standing in

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front of the sho p of P.W.1 when the incident occurre d . They were later taken to S C B Medical College & Hospital, Cutta c k. He added that he could not say whether Kalia @ Sukanta Patr a was present there, as he did n ot know him.

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P.W.6 st a ted that he knew the Appellant, P.W . 11-Kuni, the deceased persons, and the injured P.W.15. He furth e r stated that there were diffe r ences between the Appellant and his w ife Kuni, as a result of whic h she had gone to reside at her pare n tal home in Gopinathpur. O n the date of the occurrence, he was a t the shop of P.W.1 when the i ncident took place. He described the o ccurrence in the same mann e r as P.Ws.2 and 3, stating that the d eceased and others were sta n ding in front of the shop of P.W.1. He further deposed that he had caught hold of the Appellant. T hereafter, he was declared ho s tile by the learned Public Prosecutor.

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P.W.7 st a ted that he knew the Appellant, who had married Kuni, the daughter of Mani Behera of their village. He deposed that Kuni was residi n g in her parental home due to strai n ed relations with the Appell a nt. He did not know Kalia @ Suka n ta Patra. He further stated th a t the occurrence took place more than a year ago at Pira Bazar in fr o nt of the shop of P.W.1. At the rele v ant time, he was at his hous e and came to the spot on hearing co m motion. On arrival, he foun d four persons crushed under a vehic l e in front of the shop of P.W . 1. The vehicle was parked in a nearb y field on the right side of the road, and the Appellant had been c a ught hold of and detained b y local people. He also witnesse d the police conducting inqu e st over the dead bodies of the dece a sed, namely Alekha Samal, R ajib Narayan Das, Hrushikesh Rout, and Golakha

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Nayak at SCB M edical College & Hospital, Cuttack. However, he clarified that he did not witness the inquest over t h e bodies of Alekha Samal a n d Rajib Narayan Das.

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P.W.8 , a co-villager, deposed that the inciden t occurred at about 7.30 p.m. o n 30.03.1995 at Pira Bazar in front of the shop of P.W.1. At that t i me, the deceased persons, namely A l ekha Samal, Rajib Narayan D as, Hrushikesh Rout, and Golakha N ayak, were standing near t h e said shop, while P.W.8 was selli n g vegetables nearby. The A p pellant came driving the Mini Tru c k from the Salipur side at a break-neck speed, ploughed it into t h e group, and crushed them un d er its wheels. In the process, P.W.8 a n d two others also sustained i n juries. P.W.8 suffered a fracture in b oth legs, his left hand, and in j uries on the left side of the head ne a r the ear, for which he was admitted to SCB Medical College & Hospital, Cuttack. Therea f ter, the witness was declared hostile b y the learned Public Prosecutor. In cross-examination, however, he c onfirmed the registration num b er of the Mini Truck driven by the A p pellant.

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P.W.9 d e posed that he knew the Appellant, h i s wife Kuni, and P.W.15. He stated that the Appellant had disturba n ces with his wife, owing to w hich she was residing at her parental h ouse. On the date of occurre n ce, P.W.9 had gone to Pira Bazar f o r marketing, when the Appel l ant came driving the Mini Truck fro m the Salipur side at a break- n eck speed, ran it over the aforesaid persons, and crushed them un d er its wheels. While the deceased pe r sons died on the spot, P.W.9, along with P.W.8, sustained injuries. He suffered injury to his rig h t leg and was taken to SCB Medic a l College & Hospital, Cuttac k for treatment.

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P.W.10 , an injured witness, stated that h e knew the Appellant and h i s wife, P.W.11. He corroborated the evidence of P.Ws.8 and 9 and further stated that he had sustained injury on his right leg in the occurrence. He too was declared h o stile by the learned Public P r osecutor.

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P.W.15 i s an eyewitness, whom the Appella n t accused of having an illicit relationship with his wife. He is the a gnatic uncle of the Appellant ’ s wife. In his sworn testimony, P.W. 1 5 stated that on the date of o ccurrence, he had gone to Pira Baz a r, where the Appellant arriv e d in a truck bearing Registration N o. OR-05C1646, parked it i n front of the shop of P.W.1, and st a rted hurling abuses at him in obscene language while accusing him of having an illicit relationshi p with his wife. The Appellant then t hreatened to kill him and dro v e away towards Salipur. About ten m inutes later, the Appellant r e turned, driving the truck at a break-neck speed, while P.W.15 w a s conversing with the deceased Rajib Das in front of the shop of P.W.1. The Appellant drove the truck t o wards them, swerving to the extreme left of the road up to the b etel shop of P.W.1, with the intention of crushing P.W.15 unde r its wheels. P.W.15, howeve r , managed to jump aside and escape d with minor injury. In the p r ocess, the truck struck and ran ove r Rajib Das, Alekha Samal, Golakha Nayak, and Hrushikesh Rout, who succumbed to t h eir injuries. Rabindra Sahu and tw o others also sustained injurie s as the accused swerved the truck fr o m the left to the right side of t he road before driving it into a nearb y field, where he stopped the v ehicle. P.W.15, along with others present at the spot, carried the injured persons to SCB Medica l College &

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Hospital, Cuttac k . He further stated that the Officer- i n-Charge of Jagatpur P.S. ar r ived at the spot by about 8:30 p.m., and that one Prakash Chandr a Behera, who was present there, lodg e d the FIR at Jagatpur P.S.

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As rightl y argued by the learned counsel for t h e Appellant, the culpability o f the accused in the present case may, a t first blush, appear to be co v ered under Section 301 of the Indian Penal Code, inasmuch as the intention of the Appellant, as alleged, was to cause the death of P. W .15, but the fatal consequence ensued in respect of four other indi v iduals. It is therefore necessary to examine the scope and applicability of Section 301 IPC. For better appreciation, the provision is reproduced below:

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301. Culpable homicide by causing death of person other than person whose death was intended .—If a person, b y doing anything which he intends or k n ows to be likely t o cause death, commits culpable homi c ide by causing t h e death of any person, whose death he neither intends n or knows himself to be likely to ca u se, the culpable h omicide committed by the offender is of the descripti o n of which it would have been if h e had caused th e death of the person whose death he i n tended or knew h imself to be likely to cause.

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The que s tion of culpability under Section 301 IPC must be approached wit h care. Superficially identical facts m ay give rise either to culpabl e homicide not amounting to murder o r to murder, depending on th e state of mind of the accused at the r elevant time and the precise m anner in which the statutory tests are s atisfied.

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Section 3 01 IPC deals with the situation in which a person, by doing anythi n g which he intends or knows to be li k ely to cause death, causes the death of a person other than the one he intended or

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knew himself to be likely to cause. The statutory objective is clear that the identity o f the actual victim is not decisive of t he degree of the offender’s c ulpability; rather, what is determi n ative is the quality of the m e ns rea with which the act was done a n d the natural consequences of the act as known or intended by the a c tor. In short, Section 301 ope r ates to “transfer” the legal character o f the offence; the culpable ho m icide produced by the offender is of the same description as it w ould have been had the intended vic t im died. The scope of Sectio n 301 is therefore limited and specifi c . It does not create a new or separate category of homicide, it si m ply transfers the malice, as i n where an accused does an act with the requisite intention or kno w ledge directed at one person but de a th ensues to another, the cul p ability is to be assessed as if the int e nded person had been killed. This means that Section 301 does n o t operate to lessen the degre e of the offence by reason of mistak e n identity of the victim. If, by virtue of the accused’s intention or k n owledge, the act falls within t h e definition of murder under Section 3 00, then the fact that some ot h er person and not the intended perso n dies will not convert the offe n ce into a lesser form of culpable h omicide, the offence remains murder and punishable accordingly. C onversely, if the mental elem e nt established is one that falls short o f Section 300, the offender’s li a bility will be measured by the natur e of culpable homicide establi s hed.

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This lea d s to the necessary probe of the distin c tion between “culpable homic i de” and “murder” under the Penal C ode. Section 299 supplies th e statutory definition of culpable ho m icide, while Section 300 circ u mscribes those kinds of culpable ho m icide which

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amount to murd e r typically by reference to the presenc e of intention to cause death. For better appreciation, both the p r ovisions are – reproduced belo w

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299. Culpable homicide .—Whoever causes d e ath by doing an a ct with the intention of causing death, o r with the intent i on of causing such bodily injury as is l i kely to cause de a th, or with the knowledge that he is li k ely by such act t o cause death, commits the offence of c u lpable homicide .

¶97

300. Murder .—Except in the cases her e inafter excepted, culpable homicide is murder, if the act by which th e death is caused is done with the inte n tion of causing d e ath, or— 2ndly .—I f it is done with the intention of causi n g such bodily injury as the offender knows to be likely t o cause the death of the person to whom the harm is c aused, or—

¶98

3rdly .—I f it is done with the intention of causing bodily injury to a ny person and the bodily injury intend e d to be inflicted i s sufficient in the ordinary course of n a ture to cause de a th, or—

¶99

4thly .—I f the person committing the act knows t h at it is so immin e ntly dangerous that it must, in all probability, cause de a th, or such bodily injury as is likely t o cause death, and commits such act without any exc u se for incurring the risk of causing death or such in j ury as aforesaid.

¶100

The stat u tory language of Section 300 (of cou r se, read with the exceptions), t herefore, operates as the primary test f or whether a culpable-homici d e-type act is to be treated as murde r ; where that threshold is cros s ed the resulting offence attracts the c onsequences of murder. The j urisprudence emphasise that the lim b s of Section 300 must be r e ad with precision, for the differe n ce between culpable homici d e and murder is not merely semantic but carries momentous diff e rences in substantive penal consequen c e.

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¶103

A fulcra l issue in applying Sections 300 an d 301 is the correct understa n ding and application of mens rea i.e. t h e subjective mental element of intention and knowledge. Indian criminal law treats “intention ” and “knowledge” as distinct though r e lated modes of culpability: in t ention signifies a conscious purpose t o bring about a particular con s equence, whereas knowledge connot e s awareness that a particular result is likely to follow from the ac t . The courts have long recog n ised that these are not just abstract categories but factual inferenc e s to be drawn from the totality of ev i dence in the conduct of the a ccused before, during and after the act, any overt threats or declar a tions, the weapon or means availed a nd its likely effect, the spee d , direction and targeting of the assa u lt, and other attendant circu m stances. The doctrine of dolus event u alis i.e. ‘the accused forese e ing and reconciling himself to t h e probable consequence’ h a s been treated as subsumed within t h e concept of “knowledge” fo r the purposes of Section 300; where the accused appreciated that h is act was so imminently dangerous t h at it must in all probability c a use death, the requisite knowledge fo r murder may be inferred.

¶104

It is also necessary to observe the effect of statutory exceptions and recognised defences on the interplay between Sections 300 an d 301. The exceptions to Section 300, for instance, sudden and gra v e provocation, acts done in good faith in the exercise of rig h t of private defence, or by cons e nt in some circumstances, operate to reduce what would otherwi s e be murder to culpable ho m icide not amounting to murder. The s e exceptions are factual defe n ces and, insofar as they are establ i shed on the

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materials, they o p erate irrespective of whether the actu a l victim was the intended target or not; transfer of malice under Sec t ion 301 does not nullify an ot h erwise available exception. That sai d , the burden of proof for an e x ception lies where the law prescribes, and whether an exception ap p lies depends on the temporal seque n ce of events and on whether t here was time for the passion to coo l , or whether the force used w as proportionate and necessary. Hen c e, a careful, fact-sensitive ev a luation of both mens rea and possib l e exceptions is indispensable before any determination that an off e nce amounts to murder under Section 302 by reason of Section 301.

¶108

The Hon ’ ble Apex Court, in the matter of Ashok Saxena vs. The State of Uttarakhand etc ., reported in 2025 LiveLaw (SC) 163 , in this regard ha s further clarified the position of law, as follows –

¶109

37. Fr o m the perusal of the provision of Section 301 of the I P C, it becomes manifest that Secti o n 301 embodies what the English authors describe as the doctrine o f transfer of malice or the transmigration of motive. U nder the Section, if A intends to kill B, but kills C w hose death he neither intends nor knows himself t o be likely to cause, the intention to kill C is by law attri b uted to him. If A aims his shot at B , but it misses B either because B moves out of the rang e of the shot or b e cause the shot misses the mark and hits some other per s on C, whether within sight or out o f sight, under Se c tion 301, A is deemed to have hit C w ith the intention to kill him. What is to be noticed is that to invoke S e ction 301 of the IPC, A shall not ha v e any intention to cause the death or the knowledge th a t he is likely to c ause the death of C. This Section lay s down that culp a ble homicide may be committed by c ausing death of a person whom the offender neither i n tended nor knew himself to be likely to kill. If the killin g takes place in the course of doing an act which a person intends o r knows to be likely to cause death, it m ust be

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treated a s if the real intention of the killer ha d been actually carried out.

¶113

38. H a ving noticed salutary principles on which Section 3 0 1 of the IPC is based, it would be ins t ructive to refer t o law on the point as laid down by this Court. In Gyane n dra Kumar v. State of U.P. , reported i n AIR 1972 SC 502 the accused was deliberately tr y ing to shoot at a fleeing man who had criticized his fat h er in a School C o mmittee Meeting, but unfortunately, h is own maternal uncle came in between him and the i n tended victim and thus got killed. This Court has held t hat the act of t h e accused was nothing but murder under Section 3 0 2 read with Section 301 of the IPC.

¶114

39. In Hari Shankar Sharma v. State of M ysore reported in 1979 UJ 659 (SC), the intention of the accused w as to kill prosecution witness No. 15 b y firing a shot at h im, but the accused shot the fire and ki l led the deceased. A plea was raised before this Court t h at the appellant would be guilty of offence under Secti o n 304A or 307 o f the IPC. While negativing the said pl e a, this Court has held as under:

¶115

“This appeal under the Supreme Court (Enlar g ement of C r iminal Appellate Jurisdiction) Act is d irected again s t the judgment of the Mysore High Court convi c ting the appellant under Section 3 0 2 and sente n cing him to imprisonment for life. D etailed facts o f the case have been narrated in the ju d gment of th e High Court and it is not necessary for us to repro d uce the same here. The main allegation against the a p pellant was that he had shot the d e ceased Nazir u nnissa and Killadher. So far as the f a cts are conce r ned both the Sessions Judge and th e High Court have concurrently found that the case w a s fully prove d . The Sessions Judge was of the opinion that the fi r st appellant wanted to kill PW. 15, but a s PW. 15 w a s not available at that time, Nazirunniss a come in bet w een and she was shot, therefore the a p pellant could be guilty of an offence under Section 30 4 (A) or under Section 307 IPC. This view of the l earned Sessi o ns Judge was legally erroneous as rightly point e d out by the High Court. Section 301 f u rnishes a co m plete answer to the view taken by the Sessions Judge. It is obvious that the appellant has the i n tention

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to ki l l PW.15 and if with this intention, h e kills some b ody also, he is undoubtedly guilty of com m itting murder. There is evidence of PWs. 13, 14 and 1 5 to show that A.1 fired that shot and ki l led the decea s ed. There is no escape from conclusion t hat the appel l ant committed an offence under Section 302 of the I P C. In these circumstances, the High Co u rt was right i n correcting the error of law committed by the Learn e d Sessions Mr. Udayarathnam, tried t o bring the c a se of the appellant within the ambit of S ection 304(a ) or Section 307 but on the fact found i t is not possi b le for us to accede to her contention. F or the reaso n s given above, there is no merit in the appeal, whic h is accordingly, dismissed.”

¶119

40. In Jagpal Singh v. State of Punjab reported in AIR 199 1 SC 982: 1991 CrLJ 597, appellant Jag p al had shot at S u rjit Kaur even though he aimed at only Kapur Singh. A f ter applying doctrine of transfer of m a lice as contempl a ted under Section 301 of the IPC, thi s Court has held t hat Jagpal had made himself punishabl e under Section 3 0 2 of the IPC.

¶120

41. In Abdul Ise Suleman v. State of G ujarat reported in 1995 CrLJ 464, it was the case of the prosecuti o n that the accused had fired freely t o wards the fleei n g complainant party and the first s h ot had injured o n e person whereas second shot had resulted into deat h of ten year old son of the complainant . It was noticed t h at firing was resorted to in a com m ercial locality. T he Sessions Court had acquitted the a c cused, but acqui t tal appeal was allowed by the High Co u rt and the appe l lant was convicted under Section 302 read with Sect i on 301 and other provisions of the IPC . It was submitte d before this Court that the fac t s and circumst a nces of the case and evidence led b y the prosecuti o n did not establish that the appellant h ad any intention t o commit murder of an innocent boy a g ed ten years wit h whom there was no question of havi n g any enmity o r any occasion to take a revenge. Accor d ing to the learn e d Counsel of the appellant, even fr o m the evidence, it was possible to hold that such deat h of the boy was a bsolutely unintentional and at best it c o uld be held that such firing was a rash and negligent ac t ion on the part o f the appellant. It was argued by the l earned

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Counsel of the appellant that act committed by the appellant was not murder under Section 302 re a d with Section 301 of the IPC as held by the High Co u rt, but was an offence under Section 304A of th e IPC. Negativi n g the said contention, this Court has h e ld that gun was not fired in the air just to fright e n the complain a nt and his companions, but the gun w a s fired by the a p pellant towards fleeing person even w h en by the first s h ot one of such person was injured. Ac c ording to this C o urt, such firing was resorted to in a l ocality where th e re were number of shops and provi s ion of Section 3 0 1 of the IPC was clearly attracted in t h e facts and cir c umstances of the case. Ultimatel y , the convictio n of the appellant under Section 302 re a d with Section 3 0 1 of the IPC was upheld by this Court.

¶124

42. In view of the principles laid down by thi s Court in above q uoted decisions, it is evident that eve n if it is held for t h e sake of argument that the appellant had no intention to cause death of the deceased, it will h ave to be held that doctrine of transfer of mali c e, as contempl a ted under Section 301, is applicable to the facts of t h e present case and that the appellant w o uld be guilty un d er Section 302 of the IPC.

¶125

In view of the above decision, to sum up t he doctrinal position for app l ication to the present appeal, Section 301 ensures that an accused c annot evade the legal consequences o f an intention or knowledge di r ected at one person simply because another person, by fortuitous ci r cumstance, becomes the victim; but Section 301 does not itself c reate culpability out of nothing; it o perates only when the precur s ory mental element i.e. intention or k n owledge of a kind that woul d make the act murder under Se c tion 300 is established.

¶126

How the s e principles operate in the context o f Section 301 is plain in principle, apropos, where the accused, wit h an intention to kill or with k n owledge that his act was likely to c a use death in

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the sense used i n Section 300, directs his act towards A but the act results in the de a th of B, the mens rea being the movin g force of the offence is trans f erred to B and the offence retains t he quality it would have had i f A had died. Thus, the court’s exerci s e is a single, integrated inquir y into (i) the mental element of the a c cused at the time of the act ( d id he intend death or know the act t o be likely to cause death?), a n d (ii) the physical act and its conse q uences (was death caused a n d to whom?). If the answer to (i) satisfies the criteria of Secti o n 300, the conclusion under Section 301 will be that the offender is guilty of murder just as he would h a ve been had the intended vic t im died. Conversely, if the mens rea e stablished is of a lesser grad e , for example negligence, rashness or a lack of knowledge that t he act was likely to cause death, the n Section 301 cannot be invok e d to upgrade the offence to murder. T he evidence must, therefore, be scrutinised to determine not o n ly who was killed, but what t he accused intended or knew at the m oment he set his hand to the a c t.

¶130

We find it pertinent to clarify here the distinc t ion between an accidental de a th and a death caused by transfer of m alice under Section 301 IP C is of considerable significance. In cases of accidental death, the act of the accused lacks the essen t ial mens rea, as in there is no intention to cause death, nor knowledge that death is a likely conse q uence. The fatality occurs as an unintended result of negligence, r a shness, or sheer chance, and liabili t y, if any, is confined to the l e sser offence of causing death by neg l igence under Section 304A IP C . From the perspective of the victim, a n accidental death is one wh i ch occurs without the intervention o f intention or

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method. In such a case, the victim is simply at the w r ong place at the wrong time, a nd the fatality is the result of neglige n ce, rashness, or an unforesee n mishap. Such deaths are generally regarded as “accidental” in l aw and most commonly arise in t h e context of insurance claim s , motor vehicle compensation proceedings, or statutory reliefs, where the focus is on compensatio n rather than criminal culpabi l ity.

¶134

In contr a st, death by transfer of malice under Section 301 IPC is conceptu a lly distinct. Here, the act is commi t ted with the requisite homici d al mens rea, an intention to cause death, or to cause such bodi l y injury as is sufficient in the ordin a ry course of nature to cause d eath, or at the very least, knowledge t h at death is a likely conseque n ce. If, by fortuitous circumstance, the actual victim turns out to be someone other than the intended ta r get, the law “transfers” the c u lpability to the person killed, treating the homicide as if it were co m mitted against the intended victim. Thus, while accidental death i s marked by the absence of mens rea a nd is largely addressed in co m pensatory regimes, death by transfer of malice is rooted in inten t ion or knowledge and carries th e full penal consequences of murder under Section 302 IPC where the requirements of S ection 300 are satisfied.

¶135

Coming to the culpability of the Appellant i n the present case, the centr a l issue is whether his conduct fall s within the definition of “m u rder” as set out in Section 300 of the Indian Penal Code. On a car e ful scrutiny of the materials, we are p ersuaded to hold that the act o f the Appellant is squarely covered u n der the third clause of Sectio n 300 i.e. 3rdly. The clause provides t hat culpable

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homicide is mur d er if it is done with the intention of c a using bodily injury to any per s on, and the bodily injury intended to b e inflicted is sufficient in the ordinary course of nature to caus e death . The emphasis here is on the intention to cause a particular b odily injury coupled with th e sufficiency of that injury to cause death in the ordinary course o f nature.

¶139

In the pr e sent case, it is established by cogent e vidence that the Appellant, f o llowing a quarrel with P.W.15 whom he suspected of having an illi c it relationship with his wife (P.W.11) threatened to crush him und e r the wheels of his truck. About ten minutes thereafter, he r e turned, driving the truck at a very high speed, swerved it towar d s the group of people standing in fro n t of the shop of P.W.1, and in the process, ran over four individuals, causing their instantaneous d e ath. The evidence of P.W.15, supp o rted by the hostile but partial admissions of other witnesses, establ i shes that the act was not an accident but a deliberate manoeu v re aimed at inflicting bodily harm of the most grievous kind, na m ely running heavy vehicle w h eels over human bodies. It requires n o elaboration to state that su c h an act, by its very nature, is suf f icient in the ordinary course to cause death. Thus, the requireme n t of Clause 3rdly is satisfied that the Appellant intended the bodil y act, and the bodily injury ca u sed was such as would inevitably lead to death. Learned c ounsel for the Appellant, Mr. Pand a , had argued that even if the A ppellant harboured animosity toward s P.W.15, the death of the oth e r four persons was unintended, and at best the case would fall und e r Section 301 IPC, making the of f ence one of culpable homici d e not amounting to murder. He em p hasised that P.W.15 himself did not sustain any serious injury and that the

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hostile witnesse s did not attribute rash or intentional c o nduct to the Appellant. On t h e other hand, learned counsel for t h e State, Mr. Mohanty, conte n ded that the act of the Appellant clea r ly reveals an intention to cau s e bodily injury of such severity that death was a certain conseque n ce. He highlighted that the accused h a d threatened P.W.15 in precision with the mode of assault verb a tim and had thereafter execu t ed the said threat by driving the ve h icle into the crowd. Accordi n g to him, the absence of injury o n P.W.15 is inconsequential, for Section 301 ensures that the liabili t y for murder is transferred to the actual victims, and once the mental element is shown, the ident i ty of the person killed is immaterial.

¶143

Having c onsidered the rival submissions, an d the proper application of t h e relevant provisions, we are unable t o accept the contention of th e defence that the offence stands red u ced to mere culpable homici d e not amounting to murder. The App e llant’s act of driving a heavy t ruck at high speed directly into a gr o up of people after having iss u ed a threat to crush P.W.15 und e r its wheels evinces an unmistakable intention to cause such b o dily injuries sufficient in the ordinary course of nature to cause death. That the intended victim e scaped is of no avail to the Appellan t , for Section 301 makes him equally culpable for the deaths of th e others who actually sustaine d the injuries. Therefore, the Appellan t ’s conduct is covered within C lause 3rdly of Section 300, and the o ffence made out against him i s murder punishable under Section 30 2 IPC.

¶144

With re g ard to the conviction of the Ap p ellant under Section 307 IPC , learned counsel for the Appellant, ar g ued that the essential ingredi e nt of an “attempt to murder” is abse n t, inasmuch

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as P.W.15, the alleged target, escaped without sustaining any serious injury, a nd none of the injured witnesses at t ributed their injuries to an at t empt directed against him. It was al s o contended that there is no m edical evidence to support the clai m that P.W.15 suffered any hur t . On the other hand, learned counsel for the State contended that t h e act of the Appellant in driving a h eavy vehicle directly into a g r oup of persons after threatening to c rush P.W.15 under its wheel s constitutes a clear attempt on his life, and the survival of the i ntended victim cannot absolve the A ppellant of liability under S e ction 307.

¶148

The law u nder Section 307 IPC is well settled, that it is not the injury, but th e intention or knowledge coupled with the overt act which determin e s liability under the circumstances of the case. Once the accuse d , armed with the requisite mens rea, d irects his act towards the victi m in a manner sufficient to cause deat h , the attempt is complete reg a rdless of whether the intended victim survives unhurt. Herein, t he prior threat, the deliberate act o f driving the truck into the crowd where P.W.15 was standing, a nd the fatal injuries caused to others while executing that mod u s, leave no doubt that there was an attempt to cause the death of P.W.15. The absence of me d ical corroboration of injury on hi m is of no consequence. M oreover, P.W.8 is an injured wi t nesses who implicated the A ppellant driving a mini truck from S a lipur side in breakneck speed, not only crushed the deceased pers o ns under the wheels of the tr u ck but also caused injuries to him an d others. The doctor (P.W.17 ) treated P.W.8 in the Accident U n it, Dept. of Orothopaedic o f SCBMCH, Cuttack where he was admitted on

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30.03.1995 and discharged on 02.05.1995 as per t h e Bed Head ticket (Ext.10). We, therefore hold that the convi c tion of the Appellant under Section 307 IPC is legally tenable.

¶152

Further m ore, Mr. Panda argued that this c ircumstance seriously under m ines the prosecution case, as the hos t ile witnesses did not attribut e any overt act to the Appellant or support the presence of P. W .15 at the scene. Mr. Mohanty, f o r the State, however, argue d that hostile testimony does not effa c e itself from the record and t h at the Court is entitled to rely upon s uch parts of the testimony as find corroboration in other reliable evidence.

¶153

It is ap p arent that a number of eyewitness e s, including P.Ws.2, 3, 4, 6 , 8, 9, and 10, were declared hosti l e. However, among the hosti l e witnesses, there are consistent ad m issions as to the presence of t h e Mini Truck at the spot, the deaths c aused by its running over th e victims, and the presence of the a c cused at the scene. These ad m issions, coupled with the testimony o f P.W.15, the medical eviden c e and the evidence of MVI, provi d e sufficient corroboration to sustain the prosecution case. Therefo r e, the hostile nature of certa i n witnesses does not detract from the overall reliability of the p rosecution evidence.

¶154

As rega r ds the argument advanced on b e half of the Appellant that m echanical failure of the vehicle could not be ruled out. The learne d counsel for the Appellant argue d that in the absence of sei z ure of tyre marks or conclusive mechanical inspection, the p r osecution case of intentional homici d al use of the truck is doubtful .

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Herein, t h e mere suggestion that mechanical fa ilure “could not be ruled out ” does not, by itself, displace the posi t ive evidence of deliberate conduct, particularly in light of the eyewi t ness account and the precedi n g threat issued by the Appellant. T h e defence of mechanical fai l ure is speculative, unsupported by material evidence, and st a nds contradicted by the circumstanc e s and ocular testimony. P.W. 1 8, the M.V.I. has specifically stated t h at there was no mechanical f ailure to the vehicle contributing to the accident. The brake syst e m of the vehicle was intact at the time of examination. T h e bulbs of the Head lights of the v ehicle were damaged due t o collusion. The hand brake and st e ering of the vehicle were in order. Thus, the failure to apply b r akes by the Appellant, who was a driver by profession and driv i ng the truck towards the extr e me left of the road to the betel shop o f P.W.1 and crushing so man y persons under the wheels speaks a v o lume against his conduct, inte n tion and knowledge.

¶158

In view of the foregoing discussion, we are of the considered opin i on that the conviction of the Ap p ellant under Section 302 IP C is well-founded, as his act falls sq u arely within Clause 3rdly of S ection 300 IPC and stands further att r acted by the operation of Sec t ion 301 IPC. The deaths of the four v ictims were the direct resu l t of the deliberate and intentional act of the Appellant, and t he finding of guilt recorded by the learned trial court under Sect i on 302 IPC warrants no interference.

¶159

We also find that the conviction of the Ap p ellant under Section 307 IP C is legally sustainable, inasmuch as h is overt act, preceded by a c lear threat to P.W.15, constituted a n attempt to

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cause his death, though the intended-victim escape d which also caused injuries t o P.W.8 for which he was treated a s an indoor patient for more than a month. However, since the A ppellant has already been se n tenced to undergo imprisonment f o r life under Section 302 IP C , no separate sentence under Sectio n 307 IPC is called for and th e same has been rightly not imposed by the learned trial court.

¶163

As a res u lt, the conviction and sentence of t h e Appellant passed by the le a rned 2^nd Additional Sessions Judge, C u ttack in S.T. Case No.78 of 1996 vide judgment and order date d 25.11.1998 under Section 3 02 IPC are hereby confirmed, alo n g with the conviction under Section 307 IPC, without separate se n tence.

¶164

The App e llant, being on bail, is directed to sur r ender before the learned trial c ourt within a period of four weeks, to serve out the remainder of his sentence, failing which the learned trial court shall take necessary steps to secure his custody in accordanc e with law.

¶165

Accordi n gly, the Appeal is hereby dismissed.

¶166

(Chittaranjan Dash) Judge

I, Agree

(S. K. Sahoo)

Judge

Bijay