B.K. Behera, J.
1. This appeal arises out of the judgment and order dated the 18th March, 1978, passed by Mr. K. S. Mishra, Sessions Judge, Balangir-Kala-handi, in Sessions Case No. 2-B of 1977 convicting the appellant Under Sections 392 and 307 of the I.P. C, and sentencing him under the first-mention- ed section to undergo imprisonment for life and under the latter section to undergo rigorous imprisonment for a period of ten years with a direction that the sentences would run concurrently.
2. The case of the prosecution may briefly be stated. The appellant had been staying in the house of his father-in-law Gobardhan Kuanr at village Nuapali. Gobardhan had divided his lands between his two daughters, leaving a portion for the maintenance of his wife who had mortgaged her piece of land with the deceased Ballav Tripathy, father of the first informant Rama-chandra Tripathy (P.W. 10, also of that village. On 17-11-1976 at about midday, while Ballav and P.W. 10 were in their house, the appellant rebuked them in filthy languages, on the protest raised by P.W. 10, the appellant alleged that they had been inducing his (appellant's mother-in-law to sell the mortgaged land to them and that he would kill them. The appellant went, brought a Taiigi (M. O. I) and suddenly dealt a blow on the forehead of P.W. 10 while the latter was sitting on his outer verandah. The appellant aimed another blow on his head, but P.W. 10 tried to ward it off and as a result, it hit his right forearm. Ballav came out of the house and after rendering first aid to his son, proceeded towards the house of the Gram Rakshi telling the appellant that the matter would be reported to the Police authorities and he (appellant) would reap the consequences. When Ballav proceeded thus, the appellant ran to him and dealt some blows on him by M. O. I on the village lane. After Ballav fell down, the appellant dealt successive blows on him by M. O. I and Ballav died on the spot. The appellant proceeded to surrender himself at the Police Station at Balangir and on the wav at village Phatamunda, he confessed before Basista Biswal (P.W. 7, Adityaprasad Patel (P.W. 8) and others that he had killed Ballav and caused injuries to his son. The appellant told them that he had been proceeding to the Police Station at Balangir to surrender and requested them not to apprehend him. The appellant went to the Police Station at Balangir with M. O. I stained with blood. The Officer-in-Charge (P.W. 9) of the Police Station seized M. O. I and the Dhoti (M. O. II) and the napkin (M. O. Ill) worn by the appellant, which had also stains of blood, as per the seizure list, Ext. 9. He arrested the appellant and on the day following, forwarded him to the court. The articles seized by him were handed over to the Offlcer-in Charge of the Tusra Police Station within whose iuris-diction the occurrence had taken place.
On the day of occurrence, P.W. 10 left for the Tusra Police Station in a bullock cart and reported the incident to the constable (P.W. 11) during the absence of the Officer-in-Charge. The constable made a station diary entry (Ext, 11). On the basis of Ext. H, the Officer-in-Charge (P.W. 12) drew up the first information report (Ext. 12) and took up investigation. He seized the bloodstained Lungi (M. O. IV) of P.W. 10 as per the seizure list, Ext. 13. On the day following, he held inquest vide Ext. l and sent dead body for postmortem examination. He seized bloodstained earth and sample earth at the place of occurrence and a bloodstained napkin (M. O. V) of the deceased vide Ext. 15. Some bloodstained and sample earth were also seized by him from the front courtyard of P.W. 10 vide Ext. 2. The bloodstained and sample earth seized from the spot, the Tangi (M. O. I) and the clothes (M. Os. II and Hi) of the appellant were sent for chemical examination. On the completion of investigation. P.W. 12 placed a charge-sheet against the appellant.
3. After commitment, the appellant stood his trial. The prosecution had examined 12 witnesses to prove its case. The plea of the appellant was one of denial. No witness had been examined on his behalf.
4. On a consideration of the evidence, the learned Sessions Judge found that the charges under Sees. 302 and 307 of the Indian Penal Code had been brought home to the appellant and accordingly, the order of conviction was recorded and the sentences were passed as indicated above.,
5. Mr. P. K. Mohanty, the learned Advocate appearing amicus curiae for the appellant, has not challenged the findings recorded by the learned Sessions Judge that the appellant had. by means of M. O. I, assulted Ballav to death and caused injuries t0 P.W. 10. He has, however, contended that owing to grave and sudden provocation, the appellant killed the deceased Ballav and therefore, his act would amount to culpable homicide not amounting to murder punishable under the First Part of Section 304 of the Indian Penal Code. He has further contended that the appellant had no intention to commit the murder of P.W. 10 and could not. therefore, be convicted Under Section 307 of the Indian Penal Code. The learned Additional Government Advocate has submitted that the order of conviction in respect of both the offences is well-founded on facts and sustainable in law.
6. There is, in the first place, the clear and cogent evidence of the injured-first informant (P.W. 10) as to the assault on his person and on his deceased father Ballav by the appellant by means of the Tangi (M. O. I). According to this witness, the mother-in-law of the appellant mortgaged a piece of land with his father Ballav by executing a registered mortgage deed (Ext. 10) in 1975 and he and his father were in possession of that land. On the day of occurrence, at about mid-day, the appellant rebuked him and his parents in filthy languages. He came and protested whereupon the appellant gave out that they had been inducing his mother-in-law to sell the mortgaged land and that he would kill them. While he (P.W. 10) was sitting on the outer verandah of his house, the appellant suddenly came with M. O. I and dealt a blow on his forehead by means of that weapon. The appellant wanted to deal another blow on his head, but he tried to ward it off and as a result, it hit his right forearm. He (P.W. 10) trawled on to the verandah adjacent to the front door of their house. Then his father Ballav came out of the house and wrapped a bandage on his hand and thereafter proceeded to the house of the Gram Rakshi to report the matter at the Police Station. P.W. 10 has further gone on to say that when his father came to the village lane, the appellant ran to him and dealt three blows by M. O, I. After his father Ballav fell down, the appellant dealt successive blows by means of M. O. I and his father died on the spot. His evidence would further show that after killing Ballav, the appellant ran away with M. O. I. The report made by P.W. 10 at the police Station would corroborate his evidence in the court. Nothing substantial had been brought out in his cross-examination to discard his testimony. The evidence of this witness had been corroborated by four eye-witnesses, named. Sahadev Sahu (p. W, 2). Trinath Seth (P.W. 4, Thadi Mahaling (P.W. 5) and Kartik Barik (P.W. 6). P.W. 2 had seen the appellant dealing two strokes by M. O. I on the person of the deceased after which this witness left the spot out of fear. Trinath Seth (P.W. 4, a washerman, who, while resting at the Jagannath temple, inview of the places of assault both on the persons of P.W. 10 and the deceased, had heard appellant accusing P.W. 10 that they were trying to take away the land of his mother-in-Law and threatend to kill him. He had seen the appellant dealing two blows on the forehead and right forearm of P.W. 10 and he had further deposed that when Ballav came out of his house and proceeded to the house of the Gram Rakshi telling' the appellant that the matter would be reported to the Police authorities, the appellant rushed towards Ballav with M, O. I and dealt some blows after which Ballav fell down and even thereafter, the appellant dealt successive blows by means of' M. O. I on him. According to this witnesss, the appellant might have dealt 15 to 16 blows by M. O. I. P.W. 5 Thadi Mahaling. a relation of the appellant had given evidence that while he was going to his field, he had seen the appellant dealing a blow on the forehead of P.W. 10 and out of fear, he fled away. P.W. 6 Kartik Barik had given evidence that while he was returning to his house with his bullocks from his field, he saw the appellant coming out of his house with a Tangi and dealing a blow on the forehead of P.W. 10 and thereafter he (P.W. 6) went away from the spot to control his bullocks who ran away being frightened when the appellant raised his Tangi. It is important to note that no materials had been brought out in the cross-examination of these four eye-witnesses, who were co-vttlagers, to show that they were interested for the prosecution or were on inimical terms with the appellant.
7. The evidence of the Doctor (P.W. 3, who had conducted the autopsy over the dead body of the deceased Ballav, as per his post-mortem report (Ext. 5, would show that he had found as many as 15 antemortem injuries on the person of the deceased, four of which were individually sufficient to cause death, which could be caused by M. O. I. He had noticed a number of injuries on the head, ear and neck portions of the deceased. The same Doctor had examined P.W. 10 as per Ext. 8/1, the injury report, and had noticed an incised wound on the forehead and another incised wound on the right forearm of P W 10. He has also found fracture of the lower one-third of ulna bone which was grievous in nature. Thus the medical evidence did support the evidence of P.W. 10 and the other eyewitnesses to the occurrence. It admits of no doubt that the death of Ballav was homicidal in nature,
8. There was, in addition, the evidence of two disinterested witnesses, namely, Basista Biswai (p. W, 7, a co-villagers, who had followed the appellant after the occurrence when the latter left the village and Aditya Prasad Patel (P.W. 8) of village Phatamunda that on his way to the Balangir Police Station to surrender himself, the appellant confessed before these persons that he had killed the deceased and caused injuries to his son. There was the unchallenged evidence of the Officer-in-Charge (P.W. 9) of the Balangir Police Station that on 17-10-76 at 6.30 p. m. the appellant being armed with M. O. I stained with blood and wearing the Dhoti (M. O. II) and the napkin1(M. O. Ill, also stained with blood, appeared at the Police Station and M. Os. I to III were seized by P.W. 9 and were later handed over to the Investigating Officer (P.W. 12). In the course of investigation, 'these articles had been sent for chemical examination and human blood was detected in M, O. I and blood was detected in M. Os. II and HI. The appellant had not explained as to how human blood could be found in M. O. I which had been, produced by him at the Police Station after the occurrence and at the trial, he denied to have surrendered himself at the Balangir police Station and produced M. O. I. This denial of the appellant could not be accepted in view of the evidence of P.W. 9 The appellant could not say as to how blood was found in his cloth. This was a telling circumstances along with the other evidence establishing that the appellant had killed Ballav and had caused injuries to PW 10 by means of M. O. I.
9. The appellant had dealt successive blows on the deceased by a heavy sharp cutting weapon (M. O. I). The injuries were sufficient in the ordinary course of nature to cause death. There could be no doubt from the evidence that the appellant had the intention of causing the death of the deceased Ballav and that with that intention, he had caused injuries sufficient in the ordinary course' of nature to cause death. The act of the appellant would, therefore, amount to murder unless, as submitted on his' behalf, it is held that Exception l to Section 300 of the Indian Penal Code would be applicable to the facts of this case.
10. As provided in Exception 1 to Section 300 of the Indian Penal Code, culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation. Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. It has been urged on behalf of the appellant that on the spur of the moment and after a quarrel, he killed the deceased while the latter was proceeding towards the house of the Gram Rakshi for making a report at the Police Station, while the appellant was in a state of grave and sudden provocation: But for the reasons to follow, it would be clear that the aforesaid Exception would not be applicable to the facts of this case.
11. In the well-known case of K. M-Nanavati v. State of Maharashtra : AIR1962SC605 , the Supreme Court has laid down (at page 546):
The Indian law, relevant to the ore-sent enquiry, may be stated thus:1) The test of 'grave and sudden' provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation m which the accused was placed would be so provoked as to lose his self-control, (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the 'first Exception t0 Section 300 of the Indian Penal Code. (3) The mental background cueated by the previous act of the victim may be taken into con- sideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.' Something which is done suddenly and in the heat of passion caused by provocation is done impulsively and at a lime when there is a temporary suspension of reason and an act so done is not controlled or planned or perceived or deliberate. The impact of provocation on human frailty is to be judged in the context of the social position and environments of the person concerned. The restraint which is generally shown by sophisticated persons used to modern living is hardly to be expected in the rase of a villager. There must, however, be circumstances to show that the provocation was both grave and sudden.
12. In the instant case, there had, flo doubt, been a quarrel between the appellant and P.W. 10 when the latter protested at the conduct jif the appellant in abusing him whereafter the appellant had brought out M. O. I and hit P.W. 10, but the evidnece would show that it was the appellant who started the quarrel by use of abusive languages. After the assault on P.W. 1.0.. the deceased came, wrapped a bandage and then proceeded towards the house of the. Gram Rakshi telling the appellant that the matter would be reported to the Police authorities and he would face the consequences. The deceased was taking recourse to law. While the deceased was proceeding, the appellant suddenly rushed towards him and dealt successive blows by means of M. O. 1 on his person by taking law into his own hands. The deceased had not offered any provocation prior to the murderous assault on him by the appellant. The statement of the deceased that he would report the matter to the police authorities and that the appellant would face the consequences could not reasonably give rise to grave and sudden provocation to a person. A piece of land had been mortgaged by the mother-in-law of the appellant with the deceased in 1975 and this fact of mortgage could not have given rise to grave and sudden provocation in the mind of the appellant after 1982 Cri. L- J./78 VII such a long time. Keeping in mind the aforesaid dictum of the Supreme Court and the facts of this case discussed above, it would be clear that Exception 1 to Section 300 of the Indian penal Code could not be attracted in this case.
13. The appellant had, therefore, legally and properly been convicted of the offence of murder punishable Under Section 302 of the Indian Penal Code.
14. Coming to the charge Under Section 307 of the Indian Penal Code, it would be noticed that when P.W. 10 raised a protest at the conduct of the appellant while he was abusing them, the appellant alleged that they were inducing his mother-in-law to sell the mortgaged land to them and told that he would kill them, After giving this threat to kill them, the appellant went and came armed with M. O. I, a heavy sharp cutting instrument and all of a sudden, dealt a blow on a vital part, that is. the forehead of P.W. 10. The evidence of P.W. 10 would further show that the appellant intended to deal another blow on his head, but when P.W. 10 tried to ward it off, it fell on his left forearm. P.W. 10 then crawled on to the verandah adjacent to the front door of their house. The Doctor had noticed a fracture of the lower-one-third of the ulna bone. This would give an indication that the appellant had intended to deal a heavy blow on the head of P.W. 10. The appellant had a motive to kill P.W. 10 and his acts and conduct while assaulting P.W. 10 by a deadly sharp cutting instrument would show that he intended to cause an injury likely to cause the death of P W. 10. Whether a person intended to kill another would depend on the facts and circumstances of each case.
In view of what has been stated above, it could reasonably be said that the appellant attempted to commit the murder of P.W. 10. The order of conviction recorded by the learned. Sessions Judge Under Section 307 of the Indian Penal Code was, therefore, justified
15. In the result, the appeal fails and the same is dismissed. The order of conviction and sentences passed against the appellant is maintained.
P.K. Mohanti, J.
16. I agree.