Manjai Murmu Vs. State of Jharkhand - Court Judgment

SooperKanoon Citationsooperkanoon.com/38068
CourtJharkhand High Court
Decided OnJan-30-2015
AppellantManjai Murmu
RespondentState of Jharkhand
Excerpt:
1 in the high court of jharkhand at ranchi criminal appeal (d.b.) no. 1417 of 2003 (against the judgment of conviction and order of sentence dated 5th september, 2003 passed by learned sessions judge, godda in sessions trial no. 36 of 2002.) manjai murmu son of hopna murmu, resident of hijri, ps-boarijore, district-godda .......... appellant -versus- the state of jharkhand …... respondent present the hon’ble mr. justice virender singh, chief justice the hon’ble mr. justice aparesh kumar singh …... for the appellant:mr.kailash prasad deo, advocate for the state : mr.v.s.sahay, a.p.p. dated 30th , january, 2015 per virender singh, c.j.(oral) appellant- majai murmu , now aged 42 years ( at the time of trial 28 years) after having been convicted for the substantive charge of section 302 ipc for allegedly committing murder of one bitimai hembrom wife of bhaiya murmu (the first informant), resident of resident of hijri, ps-boarijore, district- godda, has filed the instant appeal. the sentence slapped upon him is life imprisonment for the said charge.2. at the very outset, we have been informed by the learned counsel for the state that the appellant by now has undergone 13 years and three months. he has placed on record the certificate in this regard issued by the superintendent, central jail, dumka, where the appellant is presently confined.3. the informant does not happen to be an eye witness to the 2 occurrence. however, in the first information report, he names one girl, namely, bironmai murmu aged about 8 years to be an eye witness to the occurrence. she has been examined as pw-2 during the trial. the other witness brought forward by the prosecution during the trial is betka kisku-pw-5, whose name is not reflected in the fir, but subsequently, during course of investigation, his statement was recorded under section 161 cr.p.c. he corroborated the prosecution case when stepped into the witness box in his examination-in-chief but his cross-examination was deferred at one stage as the defence counsel sought an adjournment. thereafter his cross- examination could not be conducted for 2-3 days and in between he died his natural death. thus, this witness has not been tested on the touch-stone of cross examination.4. pw-2 beronica murmu @ bironmai murmu, a child witness, has unfolded the prosecution case stating therein that the deceased was washing utensils near the well and that the accused was also washing his clothes and at that time some quarrel ensued between the accused and the deceased. she further stated that the accused was armed with a knife having wooden handle and he gave one injury only on the chest of the deceased, which turned out to be fatal and the deceased died at the spot.5. as per the statement of dr.sunil kumar jha-pw-12, he noticed one injury in the shape of penetrating wound of 1” diameter placed over 3rd inter coastal space in left mid clavicular line which was chest cavity deep and inverted. the injury has caused damage of one of the vital organ i.e. heart. 3 6. we do not want to enter into the detailed discussion with regard to the entire prosecution evidence available on trial court record, for the reason that mr.kailash prasad deo, learned counsel for the appellant, does not join issue on the merits of the case stating that he would not be in a position to dislodge the statement of pw-2-beronica murmu @ bironmai murmu, although a child witness but appears to be trustworthy. he however prays for diluting the offence from section 302 ipc to 304 part-ii or at the most 304 part-i ipc submitting that taking the prosecution case as it is, the present case falls within the mischief of culpable homicide, not amounting to murder. he submitted that the accused otherwise happens to be the cousin of the husband of the deceased and there appears to be no strong motive with the accused to commit murder of the deceased. he stated that if one scans the evidence of the child witness, she stated that the deceased was washing the utensils and that the accused was also incidentally present near that place and at that particular time an altercation ensued between the deceased and the accused, which resulted into the present occurrence.7. however learned additional public prosecutor has opposed the prayer of learned counsel for the appellant stating that the injury received by the deceased is on a vital part, that too, with a sharp edge weapon, therefore the act of the accused falls within the mischief of section 302 ipc only.8. although, mr.kailash prasad deo has not joined issue with regard to the merits of the case and made an attempt to derive 4 some benefit on quantum of sentence only, yet we have re-scanned the entire evidence on its right perspective, being the first court of appeal and, in our considered view, there appears to be no reason to disbelieve the child witness, namely, beronica murmu @ bironmai murmu( pw-2), who has categorically stated that the accused had caused a single injury on the person of deceased when she was washing utensils at the well and the accused was washing clothes. we have applied the settled test for scanning the evidence of a child witness and find no ground to disbelieve her statement.9. we may state here that we have not entered into the evidence of pw-5-betka kisku, who has not been cross-examined by the defence and ultimately died, for the reason that the evidence of aforesaid child witness- beronica murmu @ bironmai murmu is worth credence, may be solitary witness to the occurrence.10. viewed thus, the main act of killing the deceased by the accused with the knife, he was allegedly having in his hand, is proved to the hilt.11. the next issue crops up for our consideration is whether the case on hand, in the present set of circumstance, fall within the mischief of section 302 ipc or deserves to be diluted for a lesser offence.12. in this regard, statement of star witness to the occurrence, namely, beronica murmu @ bironmai murmu(pw-2) needs to be re-appreciated. the relevant portion from her statement from original vernacular reads :5. “ml le; hks;k ewewz dh iruh crzu /kks jgh fkh vksj eat; dim+k lkq dj jgk fkk mlh le; dqn okrk ckrh gks x;k blhfy;s ekj fn;kaÞ when translated into english, it reads : “ at that time, the deceased was cleaning her utensils , manjai murmu( appellant) was cleaning his clothes. at that time, some altercation ensued between them and, therefore, he killed her”13. from the evidence available on record, it is clear that the occurrence has taken place on the spur of moment when the deceased was washing her utensils and the accused was washing his clothes. admittedly, no motive has been projected with regard to this occurrence, although a futile attempt is made in this regard.14. in the case of raj pal and ors. vs. state of haryana, reported in (2006) 9 s.c.c. 678, the hon'ble supreme court in paragraph nos. 15 and 16 has drawn the following distinction between section 299 and section 300 ipc for academic discussion:“15. the academic distinction between “murder” and “culpable homicide not amounting to murder” has always vexed the courts. the confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. the safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of sections 299 and 300. the following comparative table will be helpful in appreciating the points of distinction between the two offences: section 299 section 300 a person commits culpable homicide if 1. subject to certain exceptions the act by which the death is caused is culpable homicide is murder if done- the act by which the death is caused is done- 2. intention (a) with the intention of causing death; (1) with the intention of causing death; or or (b) with the intention of causing such (2) with the intention of causing such bodily injury as is likely to cause bodily injury as the offender knows to death; or be likely to cause the death of the person to whom the harm is caused; or (3) 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 3. knowledge (c) with the knowledge that the act is (4) with the knowledge that the act is so 6 likely to cause death 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 is mentioned above.16. clause (b) of section 299 corresponds with clauses (2) and (3) of section 300. the distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. it is noteworthy that the “intention to cause death” is not an essential requirement of clause (2). only the intention of causing the bodily injury coupled with the offender’s knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. this aspect of clause (2) is borne out by illustration (b) appended to section 300”.15. in the aforesaid judgment, celebrated judgment of hon'ble supreme court rendered in the case of virsa singh v. state of punjab reported in air1958s.c. 465 has also been reiterated and ultimately it was held in paragraphs-24 and 25 as under :“24. clause (c) of section 299 and clause (4) of section 300 both require knowledge of the probability of the act causing death. it is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. it will be sufficient to say that clause (4)of section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons being caused from his imminently dangerous act, approximates to a practical certainty. such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.25. the above are only broad guidelines and not cast-iron imperatives. in most cases, their observance will facilitate the task of the court. but sometimes the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate and clear-cut treatment to the matters involved in the second and third stages”.16. applying the ratio of the judgment rendered in the case of raj pal (supra) on the facts of the present case, we are of the considered view that the case of the prosecution would fall within mischief of section 304 part-1, instead section 302 ipc. the conviction of the appellant recorded by the learned trial court thus 7 deserves to be modified/altered. ordered accordingly.17. as the appellant has already undergone 13 years three months of his actual substantive sentence by now, in our considered view, ends of justice would be adequately met if the sentence under section 304 part-i ipc as recorded now, is reduced to the period already undergone by him.18. the net result is that the appeal on hand stands partly allowed in the aforesaid terms.19. person of the accused appellant- manjai murmu son of hopna murmu, resident of hijri, ps-boarijore, district- godda shall be released forthwith in this case, if not required, in any other case.20. the release order in this regard shall be sent forthwith to the concerned authority(s).21. registry to notify the outcome of the present appeal to the learned trial court also without any delay, for its compliance. ( virender singh, c.j.) (aparesh kumar singh, j.) jharkhand high court,ranchi the 30th january, 2015 g.jha/nafr
Judgment:

1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (D.B.) No. 1417 of 2003 (Against the judgment of conviction and order of sentence dated 5th September, 2003 passed by learned Sessions Judge, Godda in Sessions Trial No. 36 of 2002.) Manjai Murmu son of Hopna Murmu, resident of Hijri, PS-Boarijore, District-Godda .......... Appellant -Versus- The State of Jharkhand …... Respondent PRESENT THE HON’BLE MR. JUSTICE VIRENDER SINGH, CHIEF JUSTICE THE HON’BLE MR. JUSTICE APARESH KUMAR SINGH …... For the Appellant:Mr.Kailash Prasad Deo, Advocate For the State : Mr.V.S.Sahay, A.P.P. Dated 30th , January, 2015 Per Virender Singh, C.J.(Oral) Appellant- Majai Murmu , now aged 42 years ( at the time of trial 28 years) after having been convicted for the substantive charge of Section 302 IPC for allegedly committing murder of one Bitimai Hembrom wife of Bhaiya Murmu (the first informant), resident of resident of Hijri, PS-Boarijore, District- Godda, has filed the instant appeal. The sentence slapped upon him is life imprisonment for the said charge.

2. At the very outset, we have been informed by the learned counsel for the State that the appellant by now has undergone 13 years and three months. He has placed on record the certificate in this regard issued by the Superintendent, Central Jail, Dumka, where the appellant is presently confined.

3. The informant does not happen to be an eye witness to the 2 occurrence. However, in the first information report, he names one girl, namely, Bironmai Murmu aged about 8 years to be an eye witness to the occurrence. She has been examined as PW-2 during the trial. The other witness brought forward by the prosecution during the trial is Betka Kisku-PW-5, whose name is not reflected in the FIR, but subsequently, during course of investigation, his statement was recorded under Section 161 Cr.P.C. He corroborated the prosecution case when stepped into the witness box in his examination-in-chief but his cross-examination was deferred at one stage as the defence counsel sought an adjournment. Thereafter his cross- examination could not be conducted for 2-3 days and in between he died his natural death. Thus, this witness has not been tested on the touch-stone of cross examination.

4. PW-2 Beronica Murmu @ Bironmai Murmu, a child witness, has unfolded the prosecution case stating therein that the deceased was washing utensils near the well and that the accused was also washing his clothes and at that time some quarrel ensued between the accused and the deceased. She further stated that the accused was armed with a knife having wooden handle and he gave one injury only on the chest of the deceased, which turned out to be fatal and the deceased died at the spot.

5. As per the statement of Dr.Sunil Kumar Jha-PW-12, he noticed one injury in the shape of penetrating wound of 1” diameter placed over 3rd inter coastal space in left mid clavicular line which was chest cavity deep and inverted. The injury has caused damage of one of the vital organ i.e. heart. 3 6. We do not want to enter into the detailed discussion with regard to the entire prosecution evidence available on trial court record, for the reason that Mr.Kailash Prasad Deo, learned counsel for the appellant, does not join issue on the merits of the case stating that he would not be in a position to dislodge the statement of PW-2-Beronica Murmu @ Bironmai Murmu, although a child witness but appears to be trustworthy. He however prays for diluting the offence from Section 302 IPC to 304 Part-II or at the most 304 Part-I IPC submitting that taking the prosecution case as it is, the present case falls within the mischief of culpable homicide, not amounting to murder. He submitted that the accused otherwise happens to be the cousin of the husband of the deceased and there appears to be no strong motive with the accused to commit murder of the deceased. He stated that if one scans the evidence of the child witness, she stated that the deceased was washing the utensils and that the accused was also incidentally present near that place and at that particular time an altercation ensued between the deceased and the accused, which resulted into the present occurrence.

7. However learned Additional Public Prosecutor has opposed the prayer of learned counsel for the appellant stating that the injury received by the deceased is on a vital part, that too, with a sharp edge weapon, therefore the act of the accused falls within the mischief of Section 302 IPC only.

8. Although, Mr.Kailash Prasad Deo has not joined issue with regard to the merits of the case and made an attempt to derive 4 some benefit on quantum of sentence only, yet we have re-scanned the entire evidence on its right perspective, being the first court of Appeal and, in our considered view, there appears to be no reason to disbelieve the child witness, namely, Beronica Murmu @ Bironmai Murmu( PW-2), who has categorically stated that the accused had caused a single injury on the person of deceased when she was washing utensils at the well and the accused was washing clothes. We have applied the settled test for scanning the evidence of a child witness and find no ground to disbelieve her statement.

9. We may state here that we have not entered into the evidence of PW-5-Betka Kisku, who has not been cross-examined by the defence and ultimately died, for the reason that the evidence of aforesaid child witness- Beronica Murmu @ Bironmai Murmu is worth credence, may be solitary witness to the occurrence.

10. Viewed thus, the main act of killing the deceased by the accused with the knife, he was allegedly having in his hand, is proved to the hilt.

11. The next issue crops up for our consideration is whether the case on hand, in the present set of circumstance, fall within the mischief of Section 302 IPC or deserves to be diluted for a lesser offence.

12. In this regard, statement of star witness to the occurrence, namely, Beronica Murmu @ Bironmai Murmu(PW-2) needs to be re-appreciated. The relevant portion from her statement from original vernacular reads :

5. “ml le; HkS;k ewewZ dh iRuh crZu /kks jgh Fkh vkSj eat; diM+k lkQ dj jgk Fkk mlh le; dqN okrk ckrh gks x;k blhfy;s ekj fn;kAÞ When translated into English, it reads : “ At that time, the deceased was cleaning her utensils , Manjai Murmu( appellant) was cleaning his clothes. At that time, some altercation ensued between them and, therefore, he killed her”

13. From the evidence available on record, it is clear that the occurrence has taken place on the spur of moment when the deceased was washing her utensils and the accused was washing his clothes. Admittedly, no motive has been projected with regard to this occurrence, although a futile attempt is made in this regard.

14. In the case of Raj Pal and ors. Vs. State of Haryana, reported in (2006) 9 S.C.C. 678, the Hon'ble Supreme Court in paragraph nos. 15 and 16 has drawn the following distinction between Section 299 and Section 300 IPC for academic discussion:

“15. The academic distinction between “murder” and “culpable homicide not amounting to murder” has always vexed the courts. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences: Section 299 Section 300 A person commits culpable homicide if 1. Subject to certain exceptions the act by which the death is caused is culpable homicide is murder if done- the act by which the death is caused is done- 2. Intention (a) with the intention of causing death; (1) with the intention of causing death; or or (b) with the intention of causing such (2) with the intention of causing such bodily injury as is likely to cause bodily injury as the offender knows to death; or be likely to cause the death of the person to whom the harm is caused; or (3) 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 3. Knowledge (c) with the knowledge that the act is (4) with the knowledge that the act is so 6 likely to cause death 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 is mentioned above.

16. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the “intention to cause death” is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender’s knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by Illustration (b) appended to Section 300”.

15. In the aforesaid judgment, celebrated judgment of Hon'ble Supreme Court rendered in the case of Virsa Singh v. State of Punjab reported in AIR1958S.C. 465 has also been reiterated and ultimately it was held in paragraphs-24 and 25 as under :

“24. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4)of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.

25. The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate and clear-cut treatment to the matters involved in the second and third stages”.

16. Applying the ratio of the judgment rendered in the case of Raj Pal (Supra) on the facts of the present case, we are of the considered view that the case of the prosecution would fall within mischief of Section 304 Part-1, instead Section 302 IPC. The conviction of the appellant recorded by the learned trial court thus 7 deserves to be modified/altered. Ordered accordingly.

17. As the appellant has already undergone 13 years three months of his actual substantive sentence by now, in our considered view, ends of justice would be adequately met if the sentence under Section 304 part-I IPC as recorded now, is reduced to the period already undergone by him.

18. The net result is that the appeal on hand stands partly allowed in the aforesaid terms.

19. Person of the accused appellant- Manjai Murmu son of Hopna Murmu, resident of Hijri, PS-Boarijore, District- Godda shall be released forthwith in this case, if not required, in any other case.

20. The release order in this regard shall be sent forthwith to the concerned authority(s).

21. Registry to notify the outcome of the present appeal to the learned trial court also without any delay, for its compliance. ( Virender Singh, C.J.

) (Aparesh Kumar Singh, J.) Jharkhand High Court,Ranchi The 30th January, 2015 G.Jha/NAFR