Judgment:
By Court:
1. This appeal arises out of judgment and order of conviction and sentence dated 20.7.2004 passed by Vth Additional Sessions Judge,(FTC) Dumka, in Sessions case No.77 of 2003/ 105 of 2003 whereby the appellant has been convicted under sections 302 of the Indian penal Code and sentenced to undergo imprisonment for life, along with a fine of Rs. 1000/- ( rupees one thousand )and, in default of payment, to undergo further simpleimprisonment of three months.
2. Prosecution case, in short, as emerges from the fard beyan lodged by the informant PW9 is that on 5.11.2001 he learnt from another witness that the appellant had cut the right hand of his father Jharo Paraiya (deceased).
3. On the basis of the said fard beyan of the informant, Saraiyahat PS Case No. 153/2001 was registered. After investigation, charge sheet was submitted against the appellant and he faced the trial and were convicted as aforesaid.
4. Dr Dinanath Pandey PW1 conducted post mortem on the dead body of the deceased and found one incised wound, 4”x2” upto bone deep, over the right elbow from outside. On exploration of the wound, it was found that the under-linked muscles, nerves and main blood vessels of the right arm were cut. In the opinion of the Doctor (PW1), the death was due to shock and haemorrhage caused by the injury which was sufficient enough to cause the death of the deceased. As per the doctor, the said injury was caused by a sharp cutting weapon which could be a “Basula”.
5. Mr. S.P. Roy, learned counsel appearing on behalf of the appellant, submitted that at best, the appellant could be convicted under section 304 (Part II ) IPC and not under section 302 of the Indian Penal Code, as the prosecution has not brought on record anything to show that the appellant had an intention to kill the deceased.
6. On the other hand, Mr. Ravi Prakash, learned counsel appearing on behalf of the State, supported the impugned judgment.
7. After hearing the learned counsel for the parties at length and going through the materials available on the record, we find force in the submission of the learned counsel that the appellant could have been convicted under section 304 (Part II ) of the Indian Penal Code, and not under section 302 IPC.
8. It is true that the injury was caused by the appellant to the deceased by a sharp cutting weapon, but it was not on vital part of his body. It was on the elbow. As per the evidence of the doctor (PW1), the death was due to shock and haemorrhage, as the main blood vessel was cut. The prosecution has not brought any thing on record to show that there was any motive on the part of the appellant for the said incident. It was alleged in the FIR that the appellant after drinking country made liquor ( taari) used to become furious and lose his mental balance. Therefore, it appears that through the injury was such that it resulted in the death of the deceased, but the prosecution has not brought on record any thing to show that the appellant had intention to kill the deceased.
9. Considering the aforesaid facts and circumstances of the case, we are inclined to convict the appellant under section 304 (Part II ) of the Indian Penal Code, in stead of section 302 of the Indian Penal Code. Accordingly, conviction of the appellant is converted under section 302 (Part II ) IPC. So far as the sentence is concerned, it is informed that he has remained in Jail for more than ten years. Accordingly, he is convicted to the period already undergone by him.
10. For the reasons aforesaid, this appeal is partly allowed with the modification in the order of conviction and sentence of the appellant passed by the trial court in Sessions Case No. 77 of 2002/105 of2003. Accordingly, the appellant is convicted under section 304 ( Part II ) of the Indian Penal Code and sentenced to the period already undergone. The appellant is directed to be released forthwith if not wanted in any other case.