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Dasa Kandha Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in42(1976)CLT499; 1976CriLJ2010
AppellantDasa Kandha
RespondentThe State
Cases ReferredBasdev v. State of Pepsu
Excerpt:
.....that these articles belong to the appellant and he has failed to give any satisfactory explanation for the stains of blood found on them. both failure to explain and, instead, giving a false explanation denying his ownership of the tangia (m. 6. it is suggested that the prosecution has failed to establish any motive for the crime. but it is well known that where prosecution evidence is clear, cogent and categorical implicating the accused in the crime absence of motive would not affect the direct evidence in the case establishing the guilt of the accused. 1 shows that the appellant was normally walking, talking and understanding what was being said to him by the deceased and was giving intelligent replies before commission of murder. in our opinion, the appellant has failed to..........requested the accused to bring some more liquor for consumption. accordingly, both of them also left for village timashguda to bring some more liquor. p.w. 1 while returning from timashguda found the accused and the deceased going together towards village dihuduguda. the accused was putting his hand over the shoulder of the deceased in a friendly manner. they were proceeding about 30 yds. ahead of him. he heard deceased demanding some money from the accused and threatening that in case he did not give him the money, he would take him into custody and proceed to the police station. it may be stated here, as admitted by p.w. 10, the i. o., that there was a burglary case in the year 1972 in which the accused was suspected to be involved and the deceased chowkidar had been asked by the i......
Judgment:

S.K. Ray, J.

1. The appellant has been convicted by the Sessions Judge of Koraput under Section 302 I.P.C. and sentenced to undergo rigorous imprisonment for life for having committed murder of one Buti Ganda by intentionally causing his death with a Tangia (M. O. I) on the 2nd day of October, 1973, at about mid-day on a foot-path between villages of Timashguda and Lihuduguda. This appeal is from this judgment of conviction and sentence.

2. The deceased Buti Ganda was the chaukidar of three villages of Dangachuan, Durkaguda and Kankanguda On the, day of occurrence he, accompanied by P.W. 6, came to village Dihuduguda for borrowing some paddy. On his way to village Dihuduguda, he passed through village Timashguda. There he found P.Ws. 1 and 2 who are brothers-in-law who had come there to leave some of their relations. The deceased asked them for some paddy on loan. They promised him to lend some paddy the next day. At village Timashguda P. Ws 1, 2, 6 and the deceased took some liquor and all together proceeded to village Dihuduguda. At the house of P.W. 1, P.Ws. 2 and 6 and the deceased sat when the accused reached there with half a bottle of liquor carrying a Tangia (M. O. I). This bottle of liquor was consumed by all of them except P.W. 6 as it was insufficient to go round. The deceased then asked P.W. 1 to give him some tobacco. But the latter not having any proceeded to village Timashguda to bring some tobacco. Subsequently, the deceased also requested the accused to bring some more liquor for consumption. Accordingly, both of them also left for village Timashguda to bring some more liquor. P.W. 1 while returning from Timashguda found the accused and the deceased going together towards village Dihuduguda. The accused was putting his hand over the shoulder of the deceased in a friendly manner. They were proceeding about 30 yds. ahead of him. He heard deceased demanding some money from the accused and threatening that in case he did not give him the money, he would take him into custody and proceed to the police station. It may be stated here, as admitted by P.W. 10, the I. O., that there was a burglary case in the year 1972 in which the accused was suspected to be involved and the deceased chowkidar had been asked by the I. O. to apprehend the accused in that connection and take him to the Thana. The accused, who is a co-villager of the deceased, was driven out of his village by the villagers on account of his implication in the aforesaid crime and since then he was living in another village. That burglary case, however, ended in a final report. It is in that background that the deceased was demanding money from the appellant and was threatening him to take him to Thana in case he did not pay. When this demand was made, the accused protested his inability to pay but the deceased was not inclined to listen it. Subsequently, the accused lifted his hand from the shoulder of the deceased and gave him a push and immediately thereafter dealt a blow on the left side of his head with the Tangia (M. O. I). The deceased fell down. Thereafter he gave four more blows, two on the head and two on the legs of the deceased. As a result of these strokes the deceased died at the spot The appellant then left the place towards village Dihuduguda holding his Tangia. He came to the house of P.W. 2 and there met P.W. 3 on the threshing floor He confessed to P.W. 3, wife of P.W. 2, that he had killed the deceased and while so confessing he dealt a blow on the Merukhunta (a pole used for tying bullock at the time of threshing) with his Tangia. Then he proceeded to his own village Dangachuan. While the accused was confessing his guilt to P.W. 3, her husband (P.W. 2) was nearabout and also heard this extra-judicial confession. After reaching his village Dangachuan, the appellant also made an extra-judicial confession to P.W. 4 who took him to P.W. 5, a Ward Member. There the appellant for the third time confessed to have killed the deceased in presence of P.Ws. 4 and 6 and other villagers and wanted to surrender at the P. S. and asked them to take him there. In the meantime, P.Ws. 1 and 2 had come to the village of the accused and all of them proceeded to Kodinga Police Station where P.W. 1 lodged first information report at 7 p.m. on 2-10-1973, After recording the F. I. R. the I. O., P.W. 10, arrested the accused, seized the Tangia M. O. I and also his wearing apparels including a Dhoti, a shirt and a banian which were found to be stained with blood. Thereafter he proceeded to the place of murder, held inquest over the dead body and sent it for postmortem examination to Primary Health Centre at Kotpada. Postmortem was held on 4-10-1973. The I. O. sent the blood-stained Tangia and the bloodstained cloth for chemical examination and serological test. He prepared a spot map of the place of occurrence and, after receiving the reports of the Chemical Examiner and the Serologist, submitted charge-sheet on 28-11-1973.

3. The defence is one of denial. Alternatively, the appellant also stated that it is P.W. 1 who had enmity with the deceased must have killed the latter end that this case has been falsely foisted against him,

4. It is now clear from the medical evidence that the death of the deceased was homicidal. He has found that there was a cut injury 3' X 1' X 1/2' on the left cheek in oblique direction. The injury was clean cut and well defined. On dissection he found that the upper four teeth of the left jaw, one lateral incisor, one canine and two pre-molar were injured and dislocated and lower three teeth were injured and dislocated. He found one cut injury over the pinna of the left ear extending to the mastoid bone measuring 3 1/2' x 1/2'x l/5'. This injury also was clean cut. There was another cut injury over the left panetal eminence measuring 4-1/5'X 1/2'X 1'. On dissection he found that the scalp was cut and there had been communicated fracture of the left parietal bone into four pieces of the diameter of 1'. The meninges was cut. Blood clots were seen over the dura of the brain. The parietal lobe of the brain had been lacerated. Another cut injury was also found on the left popliteal region (backside of the knee joint) in transverse direction measuring 2 1/2'X 1'X3 1/2'. All these five injuries were clean cut ones and, according to the doctor, these could have been caused by the Tangia M. O. I. The further medical evidence is that all these injuries were antemortem in nature. Injury No. 3, that is a cut injury over the left parietal eminence, was sufficient in ordinary course of nature to cause instantaneous death. Injuries 4 and 5 which had been inflicted on the leg were also, according to the doctor, likely to cause death, though not instantaneous death. According to the age of the injuries given by the doctor these must have been inflicted at about the time when the murder is said to have been committed. There is, therefore. no doubt whatsoever that the deceased died a homicidal death and that the Tangia M. O. I was a likely weapon with which all the injuries found on the deceased could have been caused.

5. The next question is whether the appellant killed the deceased. The prosecution has examined ten witnesses. P.W. 1 is the only eye-witness to the occurrence. As he says, he was following the accused and the deceased at a distance of 30 yards only, when he saw the appellant dealing five successive blows on the deceased killing him instantaneously. It was broad day light then. His evidence is fully corroborated by the medical evidence. The chemical report shows that the axe M. O. I was stained with blood though it was too small for serological test. The Dhoti (M. O, II) was also found to be stained with human blood. Instead of giving any explanation as to presence of blood stains thereon the accused has denied that the Tangia or the Dhoti belonged to him. It is a false denial, because this M. O. I. has been identified not only by P.W. 1 but also by P.W. 6, as the Tangia which was carried by the accused when he came to the house of P. W 1 with a bottle of Uquor. He also carried this Tangia to the police station from where it was seized by the I, O. The I. O. also further deposes that he seized the Dhoti from the person of the appellant. Therefore, there can be no doubt that these articles belong to the appellant and he has failed to give any satisfactory explanation for the stains of blood found on them. Both failure to explain and, instead, giving a false explanation denying his ownership of the Tangia (M. O. I) and Dhoti (M, O. II) strongly corroborate the prosecution evidence, specially of P.W. 1.

The next item of evidence which supports the prosecution case is the extra-judicial confessions made by the appellant on three different occasions successively. P, W. 3 is the first person to whom the appellant made the confession of having killed the deceased. Nothing has been elicited from P.W. 3 in her cross-examination to discredit her testimony. She is fully corroborated by her husband P.W. 2. After reaching his own village, Dangachuan, he also confessed of having killed the deceased to P.W. 4, the son of the watcher of that village. That was at 3 p.m. P.W. 4 took the accused to P.W. 5, the Ward Member, before whom he again confessed of having killed the deceased with Tangia. Both these extra-judicial confessions were made in quick succession. P.W. 5 is the Ward Member and is a respectable person and nothing has been elicited in his cross-examination so as to throw any doubt on the veracity of his testimony. The learned Sessions Judge has correctly come to the conclusion that these extrajudicial confessions were not only voluntary but also true, as will appear from the other evidence on record. Therefore, the direct testimony of P.W. 1 along with the extra-judicial confession, amply corroborated by the reports of the Chemical Examiner and Serological test and coupled with omission on the part of the appellant to explain presence of bloodstains found on the axe and human blood found on the Dhoti and giving, instead, a false explanation, bring home the charge to the accused.

6. It is suggested that the prosecution has failed to establish any motive for the crime. It is true that prosecution has not been able to adduce any clear and cogent evidence of any motive whatsoever for the crime committed by the appellant; but it is well known that where prosecution evidence is clear, cogent and categorical implicating the accused in the crime absence of motive would not affect the direct evidence in the case establishing the guilt of the accused. In our opinion, the learned Sessions Judge was justified in coming to the conclusion that the prosecution has been able to establish its case beyond all reasonable doubt.

7. Mr. Ray very fairly concedes that the defence plea taken in the trial Court is not sustainable on the evidence on record. He, however, wants to urge another line of defence based under Section 86 of the Indian Penal Code. His argument is that the prosecution has led evidence that the appellant had taken some liquor and the learned Sessions Judge in deciding on the question of sentence has given a finding that the accused was drunk on the day of occurrence. If so, under Section 86 of the Indian Penal Code he cannot be imputed with any intent to cause the death of the deceased or to cause such bodily injury as he knew was likely to cause death. All that can be imputed to him would be his knowledge that his act was likely to cause death of the deceased. It would, therefore, come within the ambit of Section 299, Indian Penal Code and the offence would be culpable homicide not amounting to murder. Therefore, the conviction should be altered from Section 302, Indian Penal Code to Section 304, Part II Indian Penal Code.

8. Section 86, Indian Penal Code says that in cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will. The evidence is that the accused had taken some liquor voluntarily at the house of P.W. 1. But there is nothing in the prosecution evidence from which it can be inferred that he was in any state of intoxication at the time when he committed the murder. The state of intoxication, envisaged in Section 86 I.P.C., must be such as would render the accused incapable of forming the specific intent essential to constitute the crime. Therefore, mere proof of drinking some liquor would not be proof of intoxication and each man has his own level of intoxication. To substantiate the plea based under Sec, 86, I, P. C. the onus is squarely on the shoulder of the accused. It was the duty of the accused to lead evidence independently or to bring out by cross-examination from prosecution witnesses that he was in such a state of drunkenness that he could not be in a position to form any intent essential to constitute the crime of murder. The scope of Section 86, Indian Penal Code and the extent to which it can be applied has been dealt with by the Supreme Court in the case of Basdev v. State of Pepsu : 1956CriLJ919 , Their Lordships have laid down three rules in the following words:

(1) That insanity, whether produced by drunkenness or otherwise, is a defence to the crime charged:

(2) That evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent;

(3) That evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts.' Therefore, the normal presumption is that a man intends the natural consequences of his acts. It is for the appellant to lead evidence to rebut such a presumption by giving evidence of his drunkenness and proving the degree of his intoxication to show that his mind was so affected by drink that he was not in a position to form any intent essential to constitute the crime. In this case, the evidence of P.W. 1 shows that the appellant was normally walking, talking and understanding what was being said to him by the deceased and was giving intelligent replies before commission of murder. Subsequent to murder his extra-judicial confessions made on three different occasions and his desire to surrender at police station also indicate a sober thinking mind and not an intoxicated one. In our opinion, the appellant has failed to discharge his onus. This defence plea is, therefore, not available.

9. In result, therefore, this appeal fails and is dismissed.

K.B. Panda, J.

10. I agree.


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