Judgment:
R.R. Prasad, J.
1. The sole appellant, Budhiman Oraon was put on trial to face charge under Section 302 of the Indian Penal Code on the allegation that the appellant committed murder of Bandhna Oraon. The trial court having found the appellant guilty convicted him under Section 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life.
2. The case of the prosecution is that on the day of occurrence, i.e. 28.4.1997 Budhiman Oraon, father of the informant Tetla Oraon (P.W.3) had gone to village Deoragani and returned home in the evening at about 6 P.M. and while he was in his courtyard, the appellant Budhiman Oraon (informant's nephew) suddenly came and picked up quarrel with Budhiman Oraon. The informant and others intervened and got the appellant pacified. After some times at about 7 P.M. the appellant again came to the house of the deceased with an axe and started hurling abuses and also struck the door with an axe. Meanwhile, when he saw the deceased, he rushed towards him to kill him, upon which the deceased rushed towards backyard of his house where informant also came but the appellant cut his father with axe to death and the appellant also chased the informant to kill but the informant fled from there and came to other village and after some times when the informant came with other villagers, he found his father dead.
Further case is that Lodga Murmu (P.W.5) Office-in-Charge of Bishunpur Police Station when received some rumour that one persons has been done to death at Ambatoli village Deoragani, he came to the village and recorded fardbeyan (Ext.2) of the informant and took the matter for investigation. In course of investigation, Investigating Officer (P.W.5) seized blood stained earth at the place of occurrence under seizure list (Ext.3) and also made inquest of the dead body and prepared Inquest Report (Ext.4). On the basis of said fardbeyan, a case was registered and a formal first information report was drawn. Further case is that Investigating Officer arrested the appellant, who confessed his guilt and on his pointing an axe, weapon used in the commission of murder smeared with blood was seized under Ext.3/1. Thereafter the dead body was sent for post mortem examination. Dr. Hemant Kumar (PW.4) held autopsy on the dead body and found the following injuries.
1. Incised wound size 3' x 2' x 1' over left occipital region of head with fracture of underlying bone, brain matter congested blood clot present.
2. Lacerated wound size 2' x 1' x 2' medial to injury No. 1 lower left occipital region of head with fracture of underlying bone brain matter congested blood clot present.
3. Bruise size 3' x 2' over left arm with fracture of humerous bone.
4. Bruise size 3' x 2' over dorsum of right hand.
5. Abrasion size 2' x 1' over back of right elbow.
6. Incised wound size 3' x 1' x 2' over left post auricular and temporal region of head with fracture of temporal bone. Brain matter congested and blood colt present. Pinna of left ear also cut.
7. Lacerated injury size 2' x 1' x 2' over left size of forehead fracture of underlying bone, brain matter congested blood clot present.
8. Lacerated injury size 2' x 1' x skin deep over right upper eyelid region.
According to P.W.4 injury No. 1 and 6 were caused by sharp cutting weapon like Tangi. Other injuries were caused by hard blunt substance possibly by back portion of Tangi and so far bruise is concerned it may be possibility caused by pulling the person on ground.
Doctor issued post mortem examination report (Ext.1) with an opinion that death occurred due to shock and haemorrhage on account of injury No. 1, 2, 6 and 7 which were sufficient to cause death in ordinary course in nature.
3. After completion of investigation, police submitted charge sheet and, accordingly, cognizance of the offence was taken and in due course, when the case was committed to the court of sessions, charges were framed to which the appellant pleaded not guilty and claimed to be tried.
4. The prosecution in order to prove the charge examined as many as 5 witnesses. Of them P.W.1 Bishnu Bhagat is the witness to the seizure of an axe smeared with blood from the house of the appellant. P.W.2 Litni Orain, wife of the information as well as P.W.3 Tetla Oraon are the eye witnesses, who have testified that they saw the appellant committing murder of the deceased.
5. After closer of the case the appellant was questioned under Section 313 of the Code of Criminal Procedure about the incriminating circumstances to which he denied.
6. The trial court having placed reliance on the testimonies of the eye-witnesses coupled with the corroborative evidence did find the appellant guilty and, accordingly, convicted and sentenced the appellant as aforesaid.
7. Being aggrieved with that, the appellant has preferred this appeal.
8. Learned Counsel appearing for the appellant submitted that admittedly the appellant is agnate to the deceased, who never wanted to give due share in the landed properties to the appellant and that might have provoked the appellant to commit the offence and if it has been done committed under provocation and under fit of rage one can not be held guilty under Section 302 of the Indian Penal Code, rather one would be guilty either part I and part II of Section 304 of the Indian Penal Code.
9. Heard learned Counsel appearing for the State.
10. Having heard leaned Counsel appearing for the parties and on perusal of the records, I do find that P.W.3 has testified that on the day of occurrence while his father-the deceased was in his house, the appellant came all on a sudden at about 6 P.M. and picked up quarrel with his father but on his as well as others intervention, the matter got pacified but thereafter at about 7 P.M. the appellant again came with an axe and struck it on the door of the house and on getting sight of the deceased, the appellant chased him, who fled towards backyard of the house and seeing this, he as well as his wife P.W.2 rushed there to rescue him but by the time they could intervene the appellant cut the deceased with axe and then appellant chased them to kill and hence he as well as his wife ran away towards another village and when after some times returned with villagers, he saw his father dead. Nothing seems to have been elicited from this witness to discard his testimony. On the other hand, the testimony of this witness gets corroboration from the evidence of Investigating Officer, who did find blood at the place of occurrence and also seized the weapon used in the murder at the instance of the appellant. Of course, neither the earth nor blood stained weapon was sent for chemical examination but this deficiency in no way effects the case of the prosecution adversely as the defence never came with the case that the murder took place at other place than the place of occurrence. Further testimony of the informant P.W.3 gets support from the medical evidence as the Doctor found injuries on the person of the deceased caused by sharp cutting weapon. In the circumstances, the trial court rightly did find the appellant guilty for the charge levelled against him.
11. Now coming to the submission advanced on behalf of the appellant that the appellant cannot be said to have committed murder with pre-meditation as the appellant seems to have committed murder under impulse of passion on being provoked by the deceased denying due share to the appellant in the properties. The submission in the facts and circumstances of the case is devoid of any merit. In order to appreciate submission one needs to take notice of Section 300 which reads as under:
300. Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or
Secondly - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or -
Thirdly - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or
Fourthly - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Explanation 1 - When culpable homicide is not murder - Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, cause the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisions:
First - that the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly - That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly - That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation - Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
12. From bare perusal of the provisions, as noticed above, it is crystal clear that before an accused can draw any benefit from explanation 1 to Section 300 of the Indian Penal Code there should be some circumstance to indicate that the act of the accused was done in the same transaction in which he received the grave and sudden provocation. If there is interval of time then the act of the accused seizes to be a part of same transaction and it cannot be pleaded by him that it was his spontaneous reaction to the provocation which he had received.
Again it has been well settled that one can derive benefit of Explanation 1 of Section 300 when provocation given was in the circumstances of the case likely to cause normal and reasonable person to loose self control of himself to the extent of inflicting injury or injuries that he did inflict. In this case both the elements are absent. In the facts and circumstances of the case it could not be said that under grave and sudden provocation the appellant did offence as it is not the case of the defence that the appellant was provoked by the deceased by his act or words just before the occurrence and that too no prudent man is expected to lose self control when one refuses to give due share in the property. On the other hand, the appellant seems to have committed murder with pre-medication mind as it is the case of the prosecution that before one hour of the occurrence when the decease was done to death, the appellant had some altercation with the deceased and then he left for home, brought the lethal weapon, chased the deceased and then inflicted several injuries upon the deceased resulting into death of the deceased.
13. Thus, I find that the trial court has rightly convicted and sentenced the appellant. Consequently, I do not find any merit in this appeal. Therefore, the judgment of the trial court is hereby affirmed. In the result, this appeal stands dismissed.