‘Not Unusual For Tribal Man To Lose Temper On Trivial Issues’: Orissa High Court Alters Murder Conviction Of Tribal Man To Culpable Homicide

The Orissa High Court has altered conviction of a tribal man, accused of killing a man by shooting arrow shots, from murder to one for culpable homicide not amounting to murder.

While giving partial relief to the accused-appellant, the Division Bench of Justice Sangam Kumar Sahoo and Justice Sibo Sankar Mishra held,

“In fact, there is no material on record that there was any kind of previous enmity between the appellant and the deceased and further, it appears that on the fateful day, there was a sudden quarrel between the appellant and the deceased and when the deceased challenged the appellant as to why he was quarrelling with him, the appellant shot an arrow at the deceased. It is not unusual for a tribal man to lose his temper even on trivial issues.”

Prosecution Case

On 29.05.1999, the deceased was sitting on the verandah of his house when the appellant shot two arrows at him, one arrow hit on the chest and the other one hit at the right side abdomen of the deceased for which he fell down on the ground.

The appellant left the spot carrying the bow and arrows. Some of the witnesses had seen the occurrence. After the appellant left the spot, the villagers came near the deceased and found that he was lying dead there on the ground being shot with two arrows.

Subsequently, the matter was reported to the police and investigation was taken up. Upon completion of investigation, the charge-sheet was filed under Section 302 of the IPC indicting the appellant for murder.

The Additional Session Judge, Malkangiri framed charge against the appellant under the said Section and conducted the trial. After taking all the documentary and oral evidence into consideration, the Court found him guilty for the aforesaid charge and sentenced him to imprisonment for life.

Contentions of Parties

Bikash Chandra Parija, Amicus Curiae appearing for the appellant contended that the appellant picked up quarrel with the deceased and when the deceased challenged as to why he was quarrelling, the appellant shot an arrow at him.

It was further submitted that the appellant belonged to tribal community and holding of bow and arrows is not unusual on their part. Therefore, he argued, if during sudden quarrel, he shot an arrow, the offence would not come within the purview of Section 302 and it may at best be an offence under Section 304 Part-I of IPC.

Priyabrata Tripathy, Addl. Standing Counsel appearing for the State argued that the evidence of the eye witness has almost remained unchallenged. Further, he pointed out that two arrows were shot at the deceased and on the vital parts of the body like chest and abdomen and post-mortem report also corroborated that the death occurred due to such arrow shot.

Therefore, he argued that the trial Court did not commit any error by convicting the appellant under Section 302 of the IPC and thus, the appeal should be dismissed, upholding the judgment of the trial Court.

Court’s Observations

The Court observed that the eye-witness stated that the appellant shot one-arrow at the deceased but the post-mortem report indicated that in fact two arrows were struck on the body of the deceased, one on the right side chest and the other one on the abdominal region.

However, the Court was of the considered opinion that this discrepancy itself is not a ground to disbelieve the prosecution case in toto and it cannot be said that the appellant is in no way responsible for the death of the deceased.

“At this stage, if we look into the background of the case and the status of the appellant, it appears that he belonged to a tribal community and a rustic villager of the tribal area carrying bow and arrow is an usual and day to day affair and they carry this kind of weapon as an accessory adding to their attire as they generally go for hunting,” the Court said.

Therefore, it was held, merely because the appellant came to the village of the deceased on the relevant day with bow and arrows, it cannot be inferred that he had come prepared to kill the deceased.

The Court placed reliance on the case of Laxman v. State of M.P., wherein the accused shot arrow at the deceased as a result of which the deceased died instantaneously. The question which fell for consideration before the Supreme Court was whether the offence would come under the purview of ‘murder’ or ‘culpable homicide not amounting to murder’.

The Court therein deemed it proper to convict the accused for culpable homicide not amounting to murder under Section 304 Part-I of the IPC and acquitted him of the charge of murder.

Similarly, the Court also relied upon its judgments in Ude Naik v. State of Orissa, (2008) 41 OCR 479 and Hadi Sisa v. State of Orissa wherein similar facts and questions fell for consideration before the Court. It had opined that as single arrow shot was made without any provocation, the accused persons cannot be held guilty for the offence of murder and therefore, they were convicted under Section 304 Part I of the IPC.

After examining the facts on record on the touchstone of the above precedents, the Court was of the view that the act of the appellant would come under the purview of Section 304 Part I and not under Section 302, IPC and accordingly held,

“…when there was no previous enmity between the appellant and the deceased and there was no premeditation on the part of the appellant to commit the crime and the occurrence took place all of a sudden and during course of such quarrel, the appellant who is a tribal man and was having bow and arrows with him, shot the arrows at the deceased, in our humble view, the ratio laid down in Laxman (supra) is applicable to this case and thus, the act of the appellant would come under the purview of the first part of section 304 of I.P.C.”

Consequently, the jail criminal appeal was partly allowed.

Counsel for the Appellant: Mr. Bikash Ch. Parija, Amicus Curiae

Counsel for the State: Mr. Priyabrata Tripathy, Addl. Standing Counsel

Citation: 2023 LiveLaw (Ori) 106

Case Title: Hadi Dhangada Majhi @ Challan v. State of Odisha

Case No.: JCRLA No. 100 of 2006

Date of Judgment: September 13, 2023

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