Skip to content


Upendra Mahakud Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1985CriLJ1767
AppellantUpendra Mahakud
RespondentThe State
Cases ReferredK. M. Nanavati v. State of Maharashtra). The
Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - 14. for the foregoing reasons, we find that the order of conviction is legal and well-founded......submitted by mr. das for the appellant that as the appellant had killed his brother-in-law after a sudden quarrel, exception 4 of section 300 could properly be applied. exception 4 reads:culpable homicide is not murder if it is committed without pre-meditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.in the instant case, there had been no fight between the appellant and the deceased although there had been no pre-meditation on the part of the appellant and in the heat of passion and upon a sudden quarrel, the appellant had killed the deceased. it cannot, however, be said that the appellant had not taken any undue advantage and that he had not acted in a cruel and unusual.....
Judgment:

B.K. Behera, J.

1. The appellant assails the order of conviction recorded against him by the Court of Session under Section 302 of the Penal Code (for short, the 'Code') sentencing him to undergo imprisonment for life after accepting the case of the prosecution that after the night fall on Feb. 14, 1980, the appellant killed his sister's husband Mitra Gope alias Mahakud (to be described hereinafter as the 'deceased') after a quarrel on the basis of the evidence of Kanaka Dei (P.W. 6), the daughter of the deceased, who had been examined as a witness to the occurrence, the evidence of three co-villagers (P.Ws. 3, 7 and 8) staying in the same Labour Colony with the appellant and the deceased about the extra-judicial confession of the appellant and the finding of human blood in the shirt (M. O. 1.) and the half pant (M. O. II) which had been worn by the appellant and in the knife (M. O. Ill) which he had been holding and had been used as the weapon of attack and the nail clippings of the appellant collected by the doctor (P.W, 9) besides the evidence of the doctor who had conducted the autopsy as per the post-mortem report (Ex. 4) and had opined that the death of the deceased was homicidal in nature. The trial court did not accept the version of P.W. 5, the sister of the appellant and the widow of the deceased, who had been put leading questions by the prosecution under Section 154 of the Evidence Act, that the deceased not only quarrelled with her and the appellant, but had even assaulted both of them by a lathi.

2. Appearing on behalf of the appellant, Mr. Das has contended that the prosecution evidence was unworthy of credence and could not sustain the order of conviction. He has submitted that regard being had to the facts of the case and the unfortunate and painful circumstances in which the appellant had killed his own brother-in-law making his sister a widow in the process, the appellant's act would be covered by both Exceptions 1 and 4 of Section 300 of the Code. Mr. Panigrahi, the learned Additional Government Advocate, has contended that none of the grounds urged on behalf of the appellant can prevail.

3. The sole witness to the occurrence who had supported the case of the prosecution was the daughter of the deceased. She had given a true and trustworthy version about the occurrence which found sufficient support in other evidence. According to this girl, the deceased picked up a quarrel with his wife (P.W. 5), the appellant's sister, on the night of the occurrence and at that time, the appellant came and challenged the deceased as to why he assaulted his (appellant's) sister and there ensued a quarrel between the appellant and the deceased and in the midst of the quarrel, the appellant dealt a blow with the knife (M. 0. Ill) which hit the neck of the deceased and thereafter another blow on the chest of the deceased. Thereafter the appellant dragged the deceased and threw him in front of his house. The deceased succumbed to the injuries. The appellant was then wearing M. Os. I and II which had been stained with blood. Nothing had been brought out in her evidence by the defence to discredit her testimony.

4. The evidence of P.W. 6 found sufficient assurance in that of the doctor (P.W. 9) who had noticed nine injuries besides multiple small abrasions on the person of the deceased six of which were incised wounds on different parts of the body including the neck and the chest and the other injuries were abrasions. According to the doctor, the incised wounds could be caused by M. O. Ill and the abrasions could be caused by coming in contact with hard and blunt substance. No doubt, P.W. 6 had been able to see only two knife blows dealt on the neck and chest by the appellant, but the other incised wounds must have been caused by no other person than the appellant which had not been noticed by P.W. 6 who must have been in a state of daze, fear and excitement at the time of the murderous onslaught on her father. Her evidence that the deceased had been dragged and thrown in front of his house by the appellant did get support from the medical evidence because of the presence of abrasions on the person of the deceased which could have been caused in that process. All the injuries were ante-mortem in nature and the injury No. 1 on the neck and the consequent internal injuries to the large blood vessels, nerves and trachea were sufficient in the ordinary course of nature to cause the death of the deceased, as opined by the doctor.

5. There was, in addition, the clear, cogent and consistent evidence of P.Ws. 3, 7 and 8 that when soon after the occurrence, they went to the spot where the appellant had been surrounded by the villagers, the appellant confessed before them to have killed his brother-in-law by means of M. O. Ill he was holding then. There was no reason to discard the evidence of these independent and disinterested witnesses in this regard.

6. M. Os. I to III and the nail clippings of the appellant had been sent for chemical and serological test and human blood was detected in each of these articles. This was yet another clinching circumstance against the appellant and this would further lend assurance to the evidence of P.W. 6 and that of P.Ws. 3, 7 and 8.

7. There was thus the clear and acceptable evidence pointing to the conclusion that the appellant had killed the deceased by dealing blows by means of M. O. Ill and that he had, after inflicting the knife blows, dragged the deceased and thrown him in front of his house.

8. In view of the aforesaid medical evidence that the injuries were sufficient in the ordinary course of nature to cause death and the evidence of P.W. 6 and that of P.Ws. 3,7 and 8 with regard to the extra-judicial confession, there could be no doubt that the appellant had the intention of causing the death of the deceased and that with that intention, had caused injuries sufficient in the ordinary course of nature to cause his death. The act of the appellant would come under the purview of Section 300 Thirdly' of the Code unless any of the Exceptions of Section 300 of the Code could be made applicable.

9. Relying on the observations made in : 1981CriLJ1136 Jagrup Singh v. State of Haryana, it has been submitted by Mr. Das for the appellant that as the appellant had killed his brother-in-law after a sudden quarrel, Exception 4 of Section 300 could properly be applied. Exception 4 reads:

Culpable homicide is not murder if it is committed without pre-meditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

In the instant case, there had been no fight between the appellant and the deceased although there had been no pre-meditation on the part of the appellant and in the heat of passion and upon a sudden quarrel, the appellant had killed the deceased. It cannot, however, be said that the appellant had not taken any undue advantage and that he had not acted in a cruel and unusual manner. The appellant first dealt a heavy and fatal blow on the neck of the deceased. He did not halt his assault and dealt several knife blows on the person of the deceased. Thereafter, in a cruel manner, he dragged the body of the deceased and threw it in front of the deceased's house. In the case reported in : 1981CriLJ1136 (supra), the accused had struck the deceased with the blunt side of a gandhala in the heat of the moment, without premeditation and in a sudden fight. In such circumstance, the Supreme Court had applied Exception 4 of Section 300 and altered the conviction to one under Section 304 Part II of the Code. The facts of the present case are distinguishable. It would not be legal, reasonable and proper to apply Exception 4 of Section 300 of the Code in the case before us.

10. We would next come to the contention raised by Mr. Das with regard to the applicability of Exception 1 of Section 300 of the Code.

11. As would appear from the evidence of P.W. 6, the deceased had picked up a quarrel with the appellant's sister and at that time, the appellant came and challenged as to why he assaulted his sister. There ensued a quarrel between the two and in the midst of the quarrel, the appellant started the attack by means of M.O. Ill and in his wrath, continued it. P.W. 5, the appellant's sister, had not supported the case of the prosecution for which she had been put leading questions by it, but such evidence is not to be discarded altogether and is to be considered for what it is worth. According to this witness, the deceased quarrelled with her and assaulted and at that time, the appellant, came and challenged the deceased as to why he (deceased) assaulted her. The deceased wanted to assault the appellant and gave out that he would assault the appellant and his sister. Her evidence was that the deceased had come out of his house holding a lantern and a lathi in his hand and that the deceased assaulted her and the appellant by the lathi he was holding. This part of her evidence with regard to the assault by the deceased by means of lathi could not be accepted because of the absence of injuries on their persons, as testified by the Investigating Officer. The Investigating Officer had, no doubt, seized a lantern with broken glasses, but had not seized any lathi on the spot. This circumstance would support the evidence of P.W. 5 that the deceased had come with a lantern.

12. Any and every quarrel before a murderous assault would not. give rise to an assumption that the killing had been done by the assailant while being deprived of the power of self-control by grave and sudden provocation offered by the deceased. 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 in which the accused was placed, would be so provoked so as to lose his self-control. 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 of Section 300 of the Code. (See : AIR1962SC605 K. M. Nanavati v. State of Maharashtra). The test to see whether the accused acted under grave and sudden provocation is whether the provocation given was, in the circumstances of the case, likely to cause a normal and reasonable person to lose self-control of himself to the extent of inflicting injury or injuries that he did inflict. The provocation must be grave and sudden and of such a nature as to deprive the accused of the power of self-control. In determining whether the provocation was of that character, one should take into account the condition of mind in which the offender was at the time of provocation. The provocation must be such as would upset not merely a hasty and hot-tempered or hypersensitive person, but upset also a person of ordinary sense and calmness. The law does not take into account the abnormal creatures reacting abnormally and contemplates the acting of normal beings in given situations.

13. Judged in the light of the aforesaid principles, it would not be reasonable to conclude that the appellant had committed the act while he had been deprived of the power of self-control by grave and sudden provocation. There had been a quarrel between the deceased and his wife (P.W. 5). This could not be said to be an abnormal and unusual circumstance. There was no mark of assault on the person of P.W. 5 and it could not be said that the deceased had assaulted her. Even assuming that the deceased had assaulted P.W. 5, his wife, this could not reasonably give rise to grave and sudden provocation in the mind of the appellant. The first Exception of Section 300 of the Code could have no application in this case.

14. For the foregoing reasons, we find that the order of conviction is legal and well-founded.

15. The appeal fails and is dismissed.

D.P. Mohapatra, J.

16. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //