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Urlikia Medina Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Appeal No. 17 of 1962
Judge
Reported inAIR1964Ori149; 1964CriLJ685
ActsIndian Penal Code (IPC), 1860 - Sections 53, 60, 304 and 306; General Clauses Act - Sections 3(27) and 4
AppellantUrlikia Medina
RespondentThe State
Appellant AdvocateG. Narasimham, Adv.
Respondent AdvocateStanding Counsel
DispositionAppeal dismissed
Cases ReferredMizaji v. State of U. P.
Excerpt:
.....of passion induced by provocation, by a simple blow, is a very different thing from making use of a deadly instrument like a concealed dagger. x x x x it is clearly emphasised there that mere substitution of the expression 'imprisonment for life' for 'transportation for life' should not change the nature of punishment, and as a form of punishment, imprisonment for life must remain distinct from rigorous or simple imprisonment......of central act xxvi of 1955. prior to amendment, 'transportation for life' was construed to mean 'rigorous imprisonment for life'. it would be pedantic to make discussion over the relevant provisions as the matter is concluded by the decision of their lordships of the privy council in kishori lal v. emperor, air 1945 pc 64. their lordships observed: 'so, in india, a prisoner sentenced to transportation may be sent to the andamans or may be kept in one of the jails in india appointed for transportation prisoners, where he will be dealt with in the same manner as a prisoner sentenced to rigorous imprisonment.' this decision was considered in g. v. godse v. state of maharashtra, air 1961 sc 600 and their lordships of the supreme court accepted the correctness of the privy council decision.....
Judgment:

Misra, J.

1. The appellant has been convicted under Section 302, Indian Penal Code and sentenced to imprisonment for life. The prosecution case is that on November 7th 1960 the accused with his cousin (P. W. 1) was harvesting Kusala crop from a piece of land. The deceased protested stating that the crop had been grown by him and the accused was not entitled to remove the same. There were some altercations by exchange of words. All of a sudden the accused picked up a lathi and dealt blows on the head, neck and waist of the deceased, and the deceased fell on fire-woods which were burning there and met with instantaneous death.

2. The accused in his statement Under Section 342, Cri. P. C. admitted that he was cutting Kusala crop and that the deceased prohibited him from removing crops claiming the land to be his and that there was mutual exchange of words; but he denied to have assaulted the deceased with a stick. He stated that the deceased was drunk, he pushed him and the deceased fell on the stone and then on the fire where there were three heavy logs kept raised at their burning ends. On account of the fall there was fracture on the head of the deceased who died instantaneously.

3. The doctor P. W. 3 stated that he found a lacerated wound 1 1/4' x 1/2' bone deep on the left side of the head 1/2' to the back and above the upper border of the ear. The tissues around the wound congested and stained. The direction was from front to backwards and downwards. He also found a linear scratch 1 1/2' long on the left side of the neck 2 1/2' below the ear. There was also a brown coloured area 3' x 3' on the right side of the back in the lower half.

On dissection he found a fracture of both parietal bones of the entire thickness, the line of fracture started from the line of joining of the mastoid portion of the left temporal bone and the parietal bone going to right side and ending at a point 1' away from the joining line of squamous portion of the right temporal and parietal bones. He also found the 3rd, 4th and the 5th ribs of the left side fractured on posterior halves into two pieces each. All these injuries are ante-mortem. Death was due to shock and haemorrhage due to injuries to the head and chest. The injuries on the head and chest could independently cause death immediately on the infliction of the injuries within a minute or two. It is clear that death was caused by the assault. The suggestion of the defence that death was due to fall on the stone and the logs is not supported by the prosecution evidence.

4. P. Ws. 1 and 2 are the eye-witnesses. The learned Sessions Judge, after fully discussing their evidence, has accepted the evidence of P. W. 2, the widow of the deceased, as reliable. P. W. 1 supported the prosecution version before the Committing Court but attempted to resile from it in the Sessions Court. The learned Sessions Judge has rightly accepted the evidence before the Committing Court as giving a true picture of the incident.

The learned Sessions Judge also accepted the evidence of Pws. 4 and 5 before whom the accusedadmitted to have killed the deceased. Blood was found on the stick (MOs. I to III) which was used in the assault. Taking all the evidence into consideration the learned Sessions Judge held that the prosecution had established beyond reasonable doubt that the accused assaulted the deceased with a big lathi which resulted in the instantaneous death of the deceased. The learned Advocate, appearing for the appellant, did not take any serious effort to assail the finding of the learned Sessions Judge as being contrary to law and theevidence on record. On examination of the entireevidence we are also satisfied that the finding isunassailable.

5. The only point urged was that the sentence should be reduced to one under Section 304, Part II, I. P. C. as the assault was given under grave and sudden provocation. The test of grave and sudden provocation has been laid down in the leading decision reported in Mancini v. Director of Public Prosecutions, 1942 A. C. 1. Viscount Simon laid down as follows :

'It is not all provocation that will reduce thecrime of murder to manslaughter. Provocation, to have that result, must be such as temporarily deprives the person provoked of the power of self-control, as the result of which he commits the unlawful act which causes death.....The test to be applied is that the effect of the provocation on a reasonable man..... so that anunusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did. Inapplying the test, it is of particular importance (a) to consider whether a sufficient interval has elapsed since the provocation to allow a reasonable man lime to cool, and (b) to take into account the instrument with which the homicide was effected, for to retort, in the heat of passion induced by provocation, by a simple blow, is a very different thing from making use of a deadly instrument like a concealed dagger. In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter.'

It is clear from the facts of this case that the weapon used was a very heavy weapon. The deceased was remonstrating with the accused from inside his hut while the accused was on his field and there was mere exchange of words. What exactly were the words used are also not before us. The injuries were on the vital parts of the body. Judged by the aforesaid test, there is absolutely no scope for an argument that there was grave and sudden provocation. The explana-tion to Exception 1 to Section 300, I. P. C. makes it clear that whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. State v. Lai Khan Pradhan, AIR 1956 Orissa 108 is also directly in point. Kusha Dehuri v. The State, 1962-28 Cut. L. T. 359 is distinguishable and has no application to the facts of this case.

6. A question has been raised before us as to whether the learned Sessions Judge was justified in imposing the sentence of 'imprisonment for life' without specifying whether it should be 'rigorous' or 'simple'. Mathammal Saraswathi v. State of Kerala, AIR 1957 Kerala 102 has been relied upon in support of the contention that the form in which the sentence has beea passed is illegal and that the Court imposing sentence should, in view of the provisions of Section 60, I. P. C., to specify the nature of imprisonment.

Section 53, I. P. C. prescribes classes of punishments to which offenders are liable under the provisions of the Code. Five classes have been specified -- Secondly,-- Imprisonment for life, and Fourthly,-- Imprisonment, which is of two descriptions, namely: (1) Rigorous, that is with hard labour; (2) Simple. 'Imprisonment for Life' was substituted for the word 'transportation' by Section 117 and schedule of Central Act XXVI of 1955. Prior to amendment, 'transportation for life' was construed to mean 'rigorous imprisonment for life'. It would be pedantic to make discussion over the relevant provisions as the matter is concluded by the decision of their Lordships of the Privy Council in Kishori Lal v. Emperor, AIR 1945 PC 64. Their Lordships observed:

'So, in India, a prisoner sentenced to transportation may be sent to the Andamans or may be kept in one of the jails in India appointed for transportation prisoners, where he will be dealt with in the same manner as a prisoner sentenced to rigorous imprisonment.'

This decision was considered in G. V. Godse v. State of Maharashtra, AIR 1961 SC 600 and their Lordships of the Supreme Court accepted the correctness of the Privy Council decision and observed :

'Under that section, a person transported for life or any other term before the enactment of the said section would be treated as a person sentenced to rigorous imprisonment for life or for the said term.'

Section 60, I. P. C. could not have been and was not applied in construing the meaning of 'transportation'. Even after the amendment, Section 60 cannot be used in construing the meaning of 'imprisonment for life'. Section 60 runs as follows :

'In every case in which an offender is punishable with imprisonment which may be of either description, it shall be competent to the Court which sentences such offender to direct in the sentence that such imprisonment shall be wholly rigorous, or that such imprisonment shall be wholly simple, or that any part of such imprisonment shall be rigorous and the rest simple.'

As per the very words of the section, it applies to a case in which the offender is punishable with imprisonment of either description. 'Imprisonment for life' is a class of punishment different from imprisonment which is of two descriptions. In terms, therefore, Section 60 cannot be invoked in support of an argument that with its aid the Court would specify 'imprisonment for life' as 'rigorous' or 'simple'.

AIR 1957 Kerala 102 makes no discussion on the question and we do not accept it as correct. So far as sentence of Transportation for a term is concerned, it has been made clear by Section 53A(2), Penal Code, that it would mean rigorous imprisonment for the same term. It would be pertinentto quote paragraph 8 of the Report of the Joint Select Committee on the Bill preceding the amendment by Central Act XXVI of 1955 :

'Section 53A, Clause 2 : The question of substitution of the words 'imprisonment for life' for the words 'transportation for life' arose in connection with the consideration of original Clauses 113, 114 and the schedule. The Committee note that the expression 'transportation for life' has not been defined nor explained in the Criminal Procedure Code. In the Indian Penal Code in Section 53, 'transportation' has been prescribed as one form of punishment. But even in the Indian Penal Code the term has not been defined and there is nothing to show what is the duration of 'transportation for life.' As a matter of fact, this expression has not been defined in any Act. Transportation may be either for life or for a shorter term. Therefore, the mere substitution of the expression 'imprisonment for life' for 'transportation for life' should not change the nature of punishment. As a form of punishment, imprisonment for life must remain distinct from rigorous or simple imprisonment. Where, however, a sentence for transportation for a term only has been passed before the commencement of this Act, the offender should be dealt with in the same manner as if he was sentenced to rigorous imprisonment for the same term and all references to transportation for a term should be omitted. In the Code of Criminal Procedure the word 'transportation' as would appear from the context means in some cases transportation for life and others, transportation for a term only. The Committee, therefore, recommend that where transportation means 'transportation for life' it should be substituted by the words 'imprisonment for life', and where it means transportation for a term only it should be omitted. The intentions of the committee have been clarified by the insertion of a new Section 53A in the Indian Penal Code.

X X X X

It is clearly emphasised there that mere substitution of the expression 'imprisonment for life' for 'transportation for life' should not change the nature of punishment, and as a form of punishment, imprisonment for life must remain distinct from rigorous or simple imprisonment. It is manifest that 'imprisonment for life' was merely substituted for transportation for life without in any way affecting the import it carried prior to the amendment, and by virtue of the Privy Council decision it carried the only meaning of rigorous imprisonment for life. The Legislature appears to have thought it unnecessary to clarify the position by the amending Act as there was no doubt in the meaning as it stood prior to the amendment. The imprisonment for life will also mean rigorous imprisonment for life would appear from the use of those expressions by the Supreme Court in some of its decisions. In K. M. Nanavati v. State of Maharastra, AIR 1962 SC 605 the Bombay High Court had sentenced the offender to undergo rigorous imprisonment for life and the appeal was dismissed in the Supreme Court with the observation that the High Court rightly passed the sentence of imprisonment for life. Their Lordships construed 'imprisonment for life' as meaning 'rigorous imprisonment for life', and the use ofsuch expressions without any discrimination cannot be said to have been inadvertently done.

In State of Madhya Pradesh v. Ahmadulla, AIR 1961 SC 998 their Lordships reversed an order of acquittal passed by the High Court and sentenced the accused to rigorous imprisonment for life. In some of the Supreme Court decisions their Lordships have used the expression 'imprisonment for life' only : Mizaji v. State of U. P., AIR 1959 SC 572.

We would therefore, conclude by saying that 'imprisonment for life' in the Indian Penal Code means 'rigorous imprisonment for life' and it can never mean 'simple imprisonment for life', and Section 60, I. P. C. cannot be used to specify the nature of imprisonment. Section 3(27) of the General Clauses Act, 1897, defining 'imprisonment' shall mean 'imprisonment of either description as defined in the Indian Penal Code, has no application to the Indian Penal Code itself. It has been made clear in the section itself that the definition would apply to Central Acts and Regulations made after the commencement of that Act. The General Clauses Act is of the year 1897 while the Indian Penal Code is of the year 1860. Section 4 of the General Clauses Act has also no application. The definition given in the General Clauses Act cannot be applied to the Indian Penal Code.

7. The appeal fails and is dismissed. As imprisonment for life means rigorous imprisonment for life, notice for enhancement is discharged.

Barman, J.

8. I agree.


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