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IN THE HIGH COURT OF ORISSA AT CUTTACK

JCRLA No. 31 of 2010

ODHC010230032010

[An application under Section 374 of the Code of Criminal

Procedure from the judgment and order dated 29.10.2009

passed by learned Sessions Judge, Keonjhar]

AFR 1. Sambari Munda (Dead)

2. Mana Munda …. Appellants

-Versus-

State of Orissa ….. Respondent

Advocate(s) appeared in this case through hybrid mode:

For Appellants : Mr. C.R Sahu, Advocate

For Respondent : Ms. Suvalaxmi Devi,

Addl. Standing Counsel

__________________________________________________________

CORAM:

THE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK

THE HONOURABLE MR. JUSTICE SASHIKANTA MISHRA

Date of Hearing: 03.09.2026 :: Date of Judgment: 08.09.2026

SASHIKANTA MISHRA, J.

The appellants, namely, Mana Munda and Sambari

Munda, who are husband and wife, faced trial in Sessions

Trial Case No. 105 of 2009 [Sessions Trial Case No. 132 of

2009] before the learned Sessions Judge, Keonjhar, for JCRLA/31/2010

ODHC010230032010

2026:OHC:106-DB

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committing the murder of one Radhi Munda of village

Kendughati, who was the sister-in-law of appellant Mana,

and for attempting to commit the murder of her stepson,

Tuna Munda. By judgment dated 29.10.2009, the trial

Court convicted both the appellants under Sections 341,

506, 307 and 302 read with Section 34 of IPC and

sentenced each of them to undergo simple imprisonment for

one month under Section 341 of IPC, RI for five years and to

pay a fine of Rs.2,000/-, in default thereof, to undergo

further RI for one year under Section 307 of IPC, RI for one

year under Section 506 of IPC and imprisonment for life and

to pay a fine of Rs.5,000/-, in default thereof, to undergo

further RI for two years under Section 302 of IPC. However,

both the appellants were acquitted of the charge under

Section 294 of IPC while appellant Sambari was also

acquitted of the charge under Section 109 of IPC.

Be it noted that the appeal in respect of appellant

No. Sambari Munda has abated in view of her death.

Accordingly, the present appeal is confined to appellant

Mana Munda.

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2. Prosecution case, briefly stated, is as follows.

On 18.08.2008, at about 8.00 to 9.00 a.m., the

informant, Tuna Munda, asked Mana Munda, his elder

paternal uncle, for his father's share in the land belonging

to his grandfather. The informant's parents had died when

he was very young and his stepmother, Radhi Munda (the

deceased), the first wife of his father and issueless, had

raised him and maintained him. Mana, who resided in the

adjoining house, was in possession of the entire land.

Despite repeated demands, Mana and his wife, Sambari,

refused to give him his share and threatened to kill him if he

persisted. On the above date, when the informant reiterated

his demand, both appellants became angry. Sambari caught

hold of the informant by his shirt and dragged him towards

their house, while Mana came with a budia (axe) and was

about to assault him. At that time, the deceased intervened

and stood in front of Tuna to protect him. It is stated that

Sambari caught hold of the deceased and exhorted Mana to

assault her, whereupon Mana dealt two blows with budia on

her head. The deceased fell down and died at the spot. The

appellants thereafter threw the budia near the dead body

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and fled from the spot. Due to absence of any conveyance

on the following morning, i.e., 19.08.2008 Tuna,

accompanied by one Makuru Giri, went to the Banshapal

Outpost and lodged FIR. On the basis of the FIR, Nayakote

P.S. Case No.32 of 2008 was registered under Sections

302/34 IPC. Upon completion of investigation, charge-sheet

was submitted against them under Sections

341/109/506/294/307/302/34 IPC.

3. The defence of the accused persons was one of

complete denial and false implication.

4. To prove its case, prosecution examined six

witnesses and exhibited twelve documents. That apart,

prosecution also proved one material object. Defence, on the

other hand, did not adduce any evidence.

5. After analyzing the evidence on record, the trial

Court held that the prosecution established the charges

under Sections 341, 506, 307 and 302 read with Section 34

of the IPC against both the appellants. It principally relied

on the evidence of P.W.1, Tuna, who was treated as an

eyewitness and the evidence of P.W.2, who had been

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informed about the occurrence by P.W.1 soon thereafter. It

also placed reliance on the evidence of P.Ws.3 and 4, who

had reached the spot after the occurrence and seen the

dead body, the medical evidence of P.W.5 regarding the

homicidal death of the deceased and the capability of the

seized budia to cause the injuries as well as the evidence of

P.W.6, the IO. It also relied on the report of the State

Forensic Science Laboratory, Bhubaneswar, regarding the

presence of human blood on the seized articles. It therefore,

held that the appellants had in furtherance of their common

intention, wrongfully restrained and criminally intimidated

Tuna and the deceased, attempted to commit the murder of

Tuna and intentionally caused the death of the deceased.

However, it found that the prosecution failed to establish

the charge under Section 294 of the IPC against either of the

appellants and the charge under Section 109 of the IPC

against appellant Sambari, and acquitted them of the said

charges.

6. Heard Mr. C.R Sahu, learned Counsel for the

appellant and Ms. Suvalaxmi Devi, learned Addl. Standing

Counsel for the State.

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7. Mr. Sahu assails the impugned judgment of

conviction on the following grounds: -

i) The trial Court erred in relying on the

testimony of P.W.1 despite material

inconsistencies and absence of independent

corroboration.

ii) P.Ws.2, 3 and 4 are not eyewitnesses

and their evidence does not connect the

appellant with the assault.

iii) The evidence regarding the timing of

the FIR is inconsistent. While P.W.6 proves

its lodging on 19.08.2008, P.W.1 stated that

he lodged it two days after the occurrence.

iv) The seizure of budia commonly

available in villages, does not connect the

appellant with the offence, particularly in the

absence of recovery at his instance. The

medical evidence only establishes that the

weapon could have caused the injuries.

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v) The prosecution case is that the

appellant intended to assault P.W.1 and that

the deceased was injured while intervening.

Thus, the requisite intention to cause her

death is not established. In the alternative, it

is argued that the occurrence would fall

within Exception 4 to Section 300 IPC.

vi) The conviction with the aid of Section

34 IPC is unsustainable in the absence of

cogent evidence establishing a common

intention between the accused.

vii) The convictions under Sections 341,

307 and 506 IPC are also unsustainable for

want of evidence establishing the essential

ingredients of the said offences against the

appellant.

8. Per contra, Ms. Suvalaxmi Devi would argue that

the prosecution established the charges against the

appellant beyond reasonable doubt. She submits that the

evidence of P.W.1, who is an eyewitness to the occurrence,

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is consistent in material particulars and finds corroboration

from the medical evidence, the evidence relating to the

seizure of the weapon and the report of the State Forensic

Science Laboratory. The minor discrepancies pointed out by

the defence do not affect the core of the prosecution case.

She also argues that the fact that the deceased intervened

to save P.W.1 does not absolve the appellant of the liability

for her death, particularly when the appellant assaulted her

on the head with a sharp-edged weapon. The nature and

situs of the injury show the requisite intention or

knowledge. The plea of applicability of Exception 4 to

Section 300 of the IPC is also not available to the appellant,

as the assault was not the result of a sudden fight and the

appellant had used a deadly weapon against the deceased.

The conviction under Section 34 of the IPC is also justified

from the conduct of both the accused persons and their

participation in the occurrence. She therefore, submits that

the judgment calls for no interference.

9. We have heard learned counsel for the parties

and have taken note of the rival contentions. We have also

perused the case record and the impugned judgment. It is

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seen that the prosecution case rests mainly on the

testimony of P.W.1, Tuna, who is the informant and an

eyewitness to the occurrence. We, therefore, find it

necessary to first examine if his testimony inspires

confidence.

10. P.W.1 has stated that about one and a half years

prior to the occurrence, he demanded his share from the

accused persons but both of them threatened to kill him. He

also stated that on the date of occurrence, appellant

Sambari caught hold of him, appellant Mana Munda came

with a budia to assault him, his mother the deceased

intervened and stood in front of him, whereafter appellant

Mana assaulted the deceased on her head with the budia,

resulting in her death at the spot. The sequence of events as

deposed by P.W.1, namely, the demand for share, the

attempt to assault him, intervention by the deceased and

the subsequent assault upon her, has remained

substantially consistent. Certain discrepancies have been

pointed out in the evidence of P.W.1. In his cross-

examination, he stated that he lodged the FIR two days after

the occurrence, whereas the FIR itself and the evidence of

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P.W.6 show that it was lodged on the following day, i.e.,

19.08.2008. There is also some discrepancy regarding the

time when P.W.1 informed P.W.2 about the occurrence.

However, in our considered view, these discrepancies do not

affect the substratum of his testimony. The occurrence took

place in a rural setting and the witnesses are persons from

tribal background. The Court cannot expect a witness to

reproduce every detail of an occurrence, including the

precise time sequence, with mathematical accuracy. Minor

variations, discrepancies and contradictions cannot militate

against the veracity of the core of the testimony, provided

there is a ring of truth in it and the same is inherently

probable. Reference in this regard may be had to the case of

Shivaji Sahabrao Bobade v. State of Maharashtra

1,

wherein the Supreme Court observed as follows:

“Now to the facts. The scene of murder is rural, the

witnesses to the case are rustics and so their

behavioural pattern and perceptive habits have to be

judged as such. The too sophisticated approaches

familiar in courts based on unreal assumptions about

human conduct cannot obviously be applied to those

given to the lethargic ways of our villages. When

scanning the evidence of the various witnesses we have

to inform ourselves that variances on the fringes,

discrepancies in details, contradictions in narrations

and embellishments in inessential parts cannot militate

1

(1973) 2 SCC 793

Page 11 of 25

against the veracity of the core of the testimony provided

there is the impress of truth and conformity to

probability in the substantial fabric of testimony

delivered.”

11. It has been argued by Mr. Sahu that being the

son of the deceased, he is an interested witness and

without independent corroboration his evidence cannot be

believed. Such submission, in our considered view, cannot

be accepted for the reason that there is no dispute that

PW-1 is related to the deceased however ‘related’ is not

equivalent to ‘interested’. A witness may be called

‘interested’ only when he or she derives some benefit from

the result of a litigation; in the decree in a civil case, or in

seeing an accused person punished. A witness who is a

natural one and is the only possible eyewitness in the

circumstances of the case cannot be said to be ‘interested’.

P.W.1 had no reason to protect the real culprit and falsely

implicate the appellants, who had assaulted his mother,

who had brought him up after the death of his father and

mother when he was at a tender age. The trial Court has

also rightly appreciated this aspect. The distinction

between related and interested witness was delineated by

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the Supreme Court in the case of State of Rajasthan v.

Kalki

2.

12. We are also conscious that the trial Court had

the advantage of observing the witnesses while they

deposed and of appreciating their demeanour. Such

advantage is undoubtedly a relevant consideration for an

appellate Court. However, the same cannot substitute an

independent assessment of the evidence. As observed in

Shivaji Sahabrao Bobade (Supra), the appellate Court is

not required to make a fetish of the trial Judge's

assessment of demeanor. In the present case, on our

independent scrutiny of the evidence, we find no reason to

discard the core testimony of P.W.1 merely on account of

the discrepancies noticed above.

13. The evidence of P.W.1 regarding the assault on

the deceased receives corroboration from the surrounding

circumstances, conduct of the appellant and the medical

evidence. P.Ws.2, 3 and 4, though not eyewitnesses to the

occurrence, reached the place thereafter and found the

deceased lying dead with injuries on her head/near the

2

(1981) 2 SCC 752

Page 13 of 25

ear. P.W.3 has also stated about the seizure of the budia

near the dead body. P.W.5, the doctor who conducted the

post-mortem examination opined that the injury sustained

by the deceased was ante-mortem and homicidal and that

the seized budia could have caused such injury. P.W.6

also proved the seizure. The evidence of these witnesses,

therefore, lends support to P.W.1’s version.

14. At the same time, the evidentiary value of the

seizure of the budia has to be appreciated with caution.

The weapon was seized from near the dead body and was

not recovered at the instance of the appellant. P.W.6 has

admitted that budias of such nature are commonly

available in villages. The forensic report showing the

presence of human blood on the seized articles is also only

a corroborative circumstance and there is no evidence

before us identifying the blood as that of the deceased by

blood group or otherwise. Thus, the seizure and the

forensic evidence cannot, by themselves, establish the

appellant's authorship of the assault. Nevertheless, these

circumstances, read with the ocular testimony of P.W.1

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and the medical evidence, provide corroborative support to

the prosecution case.

15. Based on discussion made above, we find no

ground to reject the evidence of P.W.1 insofar as his

statement that appellant Mana came with a budia, the

deceased intervened to protect him and the appellant

thereafter assaulted the deceased on her head. We

therefore accept the said part of his testimony.

16. The next question is, whether the facts so

established are sufficient to sustain the conviction of the

appellant under Section 302 of the IPC.

17. Before we proceed to consider the same, it is

necessary to keep in view the distinction between culpable

homicide under Section 299 and murder under Section

300 of the IPC. The mere fact that the act of the accused

resulted in death does not, by itself, make the act murder.

In the case of Anbazhagan v. State of Tamil Nadu

3, the

Supreme Court observed that even where none of the five

Exceptions to Section 300 is pleaded or prima facie

established, the prosecution must still establish that the

3

(2024) 20 SCC 500

Page 15 of 25

case falls within any one of the four clauses of Section

300. If the prosecution fails to establish any of the said

four clauses, the case may constitute culpable homicide

not amounting to murder within the meaning of Section

299.

18. In the present case, the prosecution has

undoubtedly established that appellant Mana inflicted the

blow on the deceased with a budia. P.W.5 opined that the

injury was sufficient in the ordinary course of nature to

cause death and that even one blow with the seized budia

could cause such injury. The act of the appellant,

therefore, was undoubtedly dangerous and culpable.

Having regard to the weapon used and the part of the body

upon which the blow was inflicted, the appellant must

also be attributed with the knowledge that such an

assault was likely to cause death.

19. However, the main question that falls for

consideration is whether the prosecution has established

the intention required to bring the act within any of the

four clauses of Section 300 of the IPC. The genesis of the

occurrence assumes significance in this regard. The

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prosecution case itself is that P.W.1 had again demanded

his share in the land; appellant Sambari caught hold of

him and dragged him towards their house; and appellant

Mana came with the budia to assault P.W.1. It was at that

stage that the deceased intervened and stood in front of

P.W.1 to rescue him. The fatal assault on the deceased,

therefore, occurred after her intervention and in the

course of the same confrontation.

20. The fact that the deceased was not the intended

target of the accused assault must be considered in light

of Section-301 IPC, invoking the doctrine of Transfer of

Malice. The doctrine implies that where a person, while

doing an act which he intends or knows to be likely to

cause death, causes the death of another person whose

death he neither intends nor knows himself likely to be

caused. In the case of Ganga Singh v. State

4

, the

Allahabad High Court, while relying on the decision in

Emperor v. Jeoli

5, commonly known as the ‘Halwa case’,

explained the scope of Section 301 IPC as follows:

4

1979 SCC OnLine All 877

5

(1917) ILR 39 All 161

Page 17 of 25

“20. Section 301, I.P.C. does not as already pointed out,

enact any rule not deducible from S. 299 and S. 300,

I.P.C. but it declares in plain language an important rule

deducible from those sections just as an explanation to

a section does. The rule could not well be stated as an

explanation to either Section 299 or Section 300, Penal

Code, 1860 as it relates to both. It was, therefore, most

convenient to state the rule by means of a fresh section.

The rule makes it clear that culpable homicide may be

committed by causing the death of a person whom the

offender neither intended, nor knew himself to be likely

to kill, a rule which though it does not lie on the surface

of S. 299 yet is deducible from the generality of the

words “causes death” and from the illustration to the

section; and the rule then goes on to state that the

quality of the homicide, that is, whether it amounts to

murder or not, will depend on the intention or

knowledge which the offender had in regard to the

person intended or known to be likely to be killed or

injured, and not with, reference to his intention or

knowledge with reference to the person actually killed, a

rule deducible from the language of Ss. 299 and 300

though not, perhaps, lying on their very surface. The

Public Prosecutor v. Suryanarayana Moorty, ((1912) 13

Cri LJ 145) (Mad); Emperor v. Jeoli, ((1917) ILR 39 All

161) and Ballan v. State (1955 Cri LJ 1448) (All).”

Such being the position of law, what can be inferred from

it is that Section 301 is a rule of attribution not a

provision defining the degree of homicide. In other words,

Section 301 transfers the mens rea, it does not elevate

every homicide into murder. Therefore, the act of culpable

homicide is to be determined with reference to the

intention or knowledge of the accused. The provision does

not create an independent offence but merely attributes

the consequence of the act to the unintended victim while

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preserving the nature and degree of culpability

accompanying the act. The appellant cannot, therefore, be

held guilty of a graver offence in respect of the deceased

than that which would have been attracted had P.W.1

been the person who sustained the blow.

21. Thus, the mere fact that the blow ultimately fell

upon the deceased, who had intervened to protect P.W.1,

would not by itself absolve the appellant of liability for her

death. The question, to decide is regarding the nature and

degree of the intention or knowledge with which the

appellant had proceeded to assault P.W.1 and if the

intended assault had resulted in the death of P.W.1, would

the act attract the provisions of Section 300 or Section

299 of the IPC. If the act would fall under the former, the

appellant would be guilty of murder, but if it falls under

the latter, they would be guilty of culpable homicide not

amounting to murder. The above, in effect is the principle

behind the doctrine of Transferred Malice as per Section-

301 IPC.

22. It therefore becomes necessary to distinguish

between the intention to cause a particular injury and the

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fact that the injury ultimately caused was sufficient in the

ordinary course of nature to cause death. P.W.5 has

established the latter. But, for attracting the third clause

of Section 300, it must also be established that the bodily

injury intended to be inflicted was the injury which was

sufficient in the ordinary course of nature to cause death.

The fact that the injury proved fatal cannot, by itself,

establish the requisite intention. The intention has to be

gathered from the totality of the circumstances, including

the genesis of the occurrence, the weapon used, the part

of the body targeted, the manner in which the assault took

place and the surrounding circumstances.

23. In the present case, appellant Mana came

armed with a budia to assault P.W.1. The use of a sharp-

edged weapon for assault undoubtedly establishes that the

appellant intended to cause bodily harm to him.

Nevertheless, the evidence does not establish that the

appellant intended to cause the death of P.W.1 or intended

to inflict upon him a bodily injury of the nature

contemplated by the third clause of Section 300 of the IPC.

There is also no evidence of repeated blows or any prior

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preparation directed towards causing death. The absence

of evidence of any prior intention and planning directed

against the deceased or his son is a circumstance which

cannot be ignored.

24. We are, therefore, unable to hold that the prosecution

has discharged its burden of bringing the act of the

appellant within any of the four clauses of Section 300 of

IPC. At the same time, having regard to the nature of the

weapon with which the appellant had proceeded to assault

P.W.1 and the manner in which the assault was sought to

be made, the appellant must be attributed with the

knowledge that such an act was likely to cause death. The

assault having resulted in the death of the deceased, who

intervened in the course of the occurrence, the culpability

attached to the act is attracted by virtue of Section 301 of

the IPC. The act, therefore, constitutes culpable homicide

not amounting to murder.

25. We have also considered the alternative

submission regarding Exception 4 to Section 300 of the

IPC. Exception 4 states where death is caused without

premeditation, in a sudden fight, in the heat of passion

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upon a sudden quarrel, provided the offender has not

taken undue advantage or acted in a cruel or unusual

manner. The evidence in the present case does indicate

that the occurrence developed suddenly in the course of

the confrontation arising from the demand for share of

land and the deceased intervened in an attempt to protect

P.W.1. However, since we have already found that the

prosecution failed to establish the ingredients of any of the

four clauses of Section 300 itself, it is unnecessary to rest

the alteration of conviction solely upon Exception 4. The

question of the applicability of a particular exception does

not require a determination once the prosecution fails to

establish the charge of murder in the first place. We

accordingly hold that the appellant is guilty of culpable

homicide not amounting to murder punishable under

Section 304 Part II of the IPC.

26. We shall now consider the conviction under

Section 307 of the IPC. The prosecution case is that

appellant Mana came armed with a budia to assault

P.W.1, but before any blow could be inflicted, the deceased

intervened. P.W.1 has not stated in his deposition that he

Page 22 of 25

sustained any injury. Rather, he has specifically attributed

to the appellant a threat to assault him with the budia,

which was prevented by the intervention of the deceased.

Though actual injury is not a sine qua non for an offence

under Section 307, the prosecution must nevertheless

establish the requisite intention or knowledge to cause

death. In the present case, the assault on P.W.1 was not

carried out, and the circumstances in which the

occurrence developed do not establish the requisite

intention.

27. As regards Section 341 of the IPC, P.W.1

specifically attributes the act of catching hold of and

dragging him to appellant Sambari. No specific act of

wrongful restraint is attributed to appellant Mana. In the

absence of proof that he participated in such restraint

pursuant to a common intention, his conviction under

Section 341 with the aid of Section 34 cannot be

sustained.

28. The conviction under Section 506 of the IPC is

also unsustainable. The evidence regarding the threat to

kill relates to an earlier demand for the share in the land,

Page 23 of 25

stated to have been made about one and a half years

before the occurrence. There is no clear evidence of any

specific act of criminal intimidation attributable to

appellant Mana proximate to the occurrence.

29. We shall next consider Section 34 of the IPC.

The evidence attributes distinct acts to the two accused,

appellant Sambari restrained P.W.1, while appellant Mana

assaulted the deceased after she intervened. There is no

cogent evidence establishing that they shared a common

intention to commit the offences charged, specifically with

regard to the charge of causing murder or bodily injury to

P.W.1. Their relationship and presence at the spot, by

themselves, are insufficient to attract Section 34.

30. Thus, on a conspectus of the evidence and the

discussion made above, we find that the prosecution has

established beyond reasonable doubt that appellant Mana

Munda inflicted the fatal blow on the deceased with a

budia, but has failed to establish that the act amounted to

murder within the meaning of Section 300 of the IPC. The

evidence, however, establishes that the appellant had

knowledge that such act was likely to cause death, thereby

Page 24 of 25

attracting Section 304 Part II of the IPC. The prosecution

has also failed to establish the essential ingredients of

Sections 307, 341 and 506 of the IPC against the

appellant or to establish his liability with the aid of Section

34 of the IPC. The conviction of the appellant under

Sections 302, 307, 341 and 506 read with Section 34 of

the IPC, therefore, cannot be sustained and stands

modified.

31. In the result, the appeal is allowed in part. Conviction

of the appellant Mana is modified to one under Sec 304-II

IPC.

32. Mr. Sahu submits that the appellant is presently aged

more than 72 years and that, having regard to his advanced

age, the fact that the occurrence took place in the year

2008, interest of justice would be served by sentencing him

to imprisonment for a lesser term. Having regard to the

overall facts and circumstances of the case and the

advanced age of the appellant, we are of the considered view

that a sentence of RI for 10 years would meet the ends of

justice. Since the appellant has already undergone the said

Page 25 of 25

period of imprisonment, the period already undergone by

him shall be set off against the sentence. He shall be set at

liberty forthwith, if his detention is not required in

connection with any other case.

..........................................

(Sashikanta Mishra, J)

Manash Ranjan Pathak, J. I agree.

…........................................

(Manash Ranjan Pathak, J)

Orissa High Court, Cuttack

Dt. 8

th

September, 2026/Deepak