Judgment:
Criminal Appeal (D.B.) No.2013 of 2004 ----- Against the judgment of conviction dated 13.10.2004 and the order of sentence dated 18.10.2004, passed in Sessions Trial No.375 of 2002 by learned 2nd Addl. Judicial Commissioner, Khunti, Ranchi. ---- Birbal Bans Mahli, son of Ram Nath Bans Mahli, resident of Rambo, P.S. Tamar, District Ranchi …. …. Appellant Versus The State of Jharkhand …. …. Respondent ----- For the Appellant :Mr. Amit Kumar Sinha, Advocate For the State :Mr. Tapash Roy, A.P.P. PRESENT HON’BLE MR. JUSTICE R.R. PRASAD HON’BLE MR. JUSTICE RAVI NATH VERMA ------ By Court: This appeal is directed against the judgment of conviction dated 13.10.2004 and the order of sentence dated 18.10.2004, passed by learned 2nd Addl. Judicial Commissioner, Khunti, Ranchi in Sessions Trial No.375 of 2002 whereby and whereunder the appellant having been found guilty for committing murder of Ghasia Munda, convicted him for the offence punishable under Section 302 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for life.
2. The case of the prosecution, as has been projected, is that on 01.06.2002 at about 10.00 A.M. Ghasia Munda, the father of the informant- Pustam Munda (P.W.4) was returning home from the forest. The appellant was also coming behind of him. When they reached near the house of Mangal Munda @ Laloo Munda, an altercation took place in between them. During that course, the appellant gave Tabla (Farsa) blow over the temporal region of Ghasia Munda, as a result of which, he fell down and then the appellant again inflicted injury over the chest by Tabla (Farsa) and on account of that, he died there. Immediately, the informant, on seeing this, came to the place of occurrence and tried to catch hold of the appellant but he managed to free from there.
3. Thereupon, B.N. Jha, Officer-in-Charge, on getting information, came to the place of occurrence and recorded the fardbeyan (Ext.2/1) of Pustam Munda wherein the informant narrated the same story as has been mentioned above. On the basis of fardbeyan, a formal first information report was drawn. Thereupon, one Tribhuvan Singh (P.W.6) was entrusted with the investigation.
4. During investigation, the I.O. held inquest on the dead body of the deceased and prepared an inquest report (Ext.1/A). He also inspected the place of occurrence and then sent the dead body for post mortem examination, which was conducted by the Doctor R.K. Sinha (P.W.5) and found the following injuries on the person of the deceased:- (i) Abrasion 2 c.m. x 2 c.m. over right cheek. (ii) Incised wound (a) 9 c.m.x2 cm. x bone deep front of left shoulder with chipping of left humeral head (b) 10 c.m.x 2 c.m. x bone deep over left chest upper part, cutting the left clavical, left sterno clavicalar joint, left first rib, soft issue blood vessels and trachea. The Doctor issued postmortem examination report (Ext.3), with an opinion that the death was caused due to above incised injury caused by sharp cutting weapon.
5. On completion of the investigation, charge sheet was submitted, upon which cognizance of the offence was taken against the appellant and the case was committed to the court of Sessions where the appellant was put on trial.
6. During trial, the prosecution, in order to prove its case, examined altogether 6 witnesses. Of them:- P.W.1-Soma Munda, P.W.2 Kanchan Singh Munda and P.W.3 Ghasia Munda are the hearsay witnesses, who derived knowledge either from P.W.4 Pustam Munda or from other persons, but P.W.4 Pustam Munda, does not seem to have testified before the court that he had disclosed about the occurrence to them and, therefore, testimonies of those witnesses will not have any evidentiary value, P.W.4, during evidence, testified almost in the same manner as had stated in the fardbeyan. He however, has stated that after the occurrence he went to the police station and gave his statement at the police station where the dead body had also been brought and an inquest report had been prepared there.
7. The trial court having found the P.W.4 trustworthy, whose testimony getting corroboration from the medical evidence, recorded the order of conviction and sentence, which is under challenge.
8. Mr. Amit Kumar Sinha, learned counsel appearing for the appellant submits that P.W.4 has testified that after the occurrence, he went to the police station and gave his fardbeyan where dead body had also been brought and inquest report was prepared but the testimony of the I.O. is otherwise where he has stated that the fardbeyan was recorded by B.N. Jha at the place of occurrence, who also held inquest of the dead body and then the investigation was handed over to him and, thereby, there happens to be a material contradiction and hence, P.W.4 never appears to be trustworthy and hence, testimony is never wroth reliable.
9. Further submission, which was advanced on behalf of the appellant was that the occurrence admittedly, took place during altercation in between the deceased and the appellant and thereby, it cannot be a case of culpable homicide, rather the case falls within one of the Exceptions, Exception-4 of Section 300 of the Indian Penal Code and hence, the trial court committed illegality in convicting the appellant for the offence under Section 302 of the Indian Penal Code and hence, the same warrants to be set aside 10. As against this, learned counsel appearing for the State submits that though there appears to be material contradiction on the point of place of recording of the fardbeyan, but that contradiction hardly matters when there is full proof case that it was the appellant, who committed murder of the deceased and under the circumstances, the trial court has rightly recorded the order of conviction and sentence against the appellant, which needs no interference by this Court.
11. Having heard learned counsel appearing for the parties and on perusal of the record, we do find that it is the case of prosecution as has been made initially in the fardbeyan that while the deceased was returning home from the forest and reached near the house of Mangal Munda, the appellant, who was coming from behind also reached there and there was altercation in between them. During which, the appellant gave two blows by Tabla (Farsa), one over temporal region and other over chest. as a result of which, he died. P.W.4, during evidence, has testified in the same manner where he has categorically stated that during altercation, the appellant gave Tabla (Farsa) blows, causing injury, resulting into the death of the deceased. The testimony of P.W.4 gets corroboration from the medical evidence, as the Doctor did find two injuries caused by sharp cutting weapon, one over temporal region and other over the chest, which were the cause of death.
12. However, question does fall for consideration as to whether the case falls within the parameter of culpable homicide or culpable homicide, not amounting to murder? 13. Admittedly, it is the case of the prosecution that the occurrence took place in course of altercation. In that event, case falls within one of the Exceptions, Exception-4 of Section 300 of the Indian Penal Code, which reads as follows:- Exception 4.—Culpable homicide is not murder if it is committed without premeditation 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.
14. Admittedly, as we have found hereinabove that whatever happened, that happened during altercation. Furthermore, nothing is there to show that the appellant acted any cruel or unusual manner and thereby, we do find that the case comes within Exception-4 of Section 300 of the Indian Penal Code and, therefore, the court seems to have committed illegality in recording the judgment of conviction and the order of sentence for the offence punishable under Section 302 of the Indian Penal Code. Accordingly, order of conviction and sentence passed for the offence under Section 302 of the Indian Penal Code is hereby, set aside. However, the appellant, instead of Section 302 of the Indian Penal Code, is convicted for the offence punishable under Section 304 Part-I of the Indian Penal Code and is sentenced for a period already undergone.
15. With the aforesaid modification, this appeal stands dismissed. The appellant, named above, who is in custody is, hereby, directed to be released forthwith, if not wanted in any other case. (R.R. Prasad, J.) (Ravi Nath Verma, J.)) Jharkhand High Court, Ranchi The 12th March, 2015 N.A.F.R/Ravi