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1999 DIGILAW 977 (PAT)

Joseph Kharia v. State Of Bihar

1999-09-23

A.K.PRASAD, R.A.SHARMA

body1999
Judgment R.A.Sharma, J. 1. The sole appellant has filed this appeal against the judgment and order, dated 25.9.1993, passed by the Additional Sessions Judge, Simdega, in Sessions Trial No. 238 of 1989, convicting and sentencing him to life imprisonment under Section 302 of the Indian Penal Code for committing murder of one Boas Kharia. 2. The prosecution case, as set out in the First Information Report, is that the appellant called the deceased to his house for preparation of medicine for his daughter, where after consuming liquor (Haria) they stated quarrelling with each other during which the appellant attacked the deceased with knife, causing incised wound on the left side of his neck on account of which he fell down and died instantaneously. Thereafter, the appellant while trying to escape from the place of occurrence was assaulted and caught hold of by Chandra Singh (PW 10) and was kept in a room and was handed over to the police on the next day. 3. After the First Information Report was lodged, the police sent the dead body to the hospital for post-mortem examination and made the investigation. A formal charge-sheet against the appellant was submitted in the Court of Sub-Divisional Judicial Magistrate, Simdega, who after taking cognizance committed the case to the Court of Session for trial. The trial Court convicted the appellant. Hence, this appeal. 4. The appellant has denied the charge. The prosecution has examined eleven witnesses in support of its case. PW 1 is a formal witness, who has proved the First Information Report. PW 2 is the chawkidar of the village and is the informant in the present case. He is not an eye-witness. His knowledge about the death of the deceased is based on the informant which he gathered from others, when he visited the place of occurrence. PWs 3, 4, 5, 6 and 10 are the eye-witnesses. PW 7 is the witness on the seizure list. PW 8 has been tendered. PW 9 is not the eye-witness. He learnt about the death of the deceased from others. PW 10 is also not the eye-witness. He reached the place of occurrence when the deceased has already died. PW 11 is a formal witness, who has proved the postmortem report. 5. PW 8 has been tendered. PW 9 is not the eye-witness. He learnt about the death of the deceased from others. PW 10 is also not the eye-witness. He reached the place of occurrence when the deceased has already died. PW 11 is a formal witness, who has proved the postmortem report. 5. PW 3 in his testimony has said that the appellant came to his house and taken his father (deceased) to his house for preparation of medicine for his daughter but, after some time he heard the hulla from the house of the appellant, whereupon he along with PWs 5, 6 and others rushed towards his house, where he found that the appellant has caught hold of his father (deceased) and assaulted him with a knife causing his death instantaneously. It is stated that the incident took place in the verandah of the house of the appellant. The appellant, thereafter, wanted to escape but, Chandra Singh (PW 10) chased and caught hold of him. He was cross-examined by the defence but, there is nothing in it so as to discredit his testimony. Although, PW 4 is also an eye-witness and has supported the prosecution case in examination-in-chief, but, in paragraph No. 5 of his cross-examination has said that by the time he reached the house of the appellant the deceased had already died. He, therefore, cannot be regarded as an eye-witness of the occurrence. 6. PW 5 is the widow of the deceased. She has fully supported the case of the prosecution and has stood the cross-examination by the defence successfully. PW 6 is also an eye-witness and has corroborated the case of the prosecution. The Investigating Officer has been examined as a Court witness, who has also supported the prosecution case. 7. A suggestion to the effect that the deceased along with the witnesses came to the house of the appellant in order to kill him and in he scuffle between them the deceased was killed due to the error by one of the man of his own group, has been put on behalf of the appellant to the eye-witnesses (PWs 3, 4, 5, 6 and 10). This suggestion has been denied by the witnesses. But, even then no evidence has been produced by the appellant in support of his case as set out in the said suggestion. 8. This suggestion has been denied by the witnesses. But, even then no evidence has been produced by the appellant in support of his case as set out in the said suggestion. 8. In this case, although the doctor, who conducted ihe post-mortem examination on the dead body of the deceased has not been examined but, the fact that the deceased has a knife injury near left side of his neck and his dead body was found in the verandah of the appellant is not disputed. In fact from the suggestion given on behalf of the appellant to the prosecution witnesses, it is apparent that the death of the deceased due to knife injury was admitted. There was, however, dispute as to the person, who caused that injury. That apart, the prosecution witnesses clearly testified that the appellant has inflicted the injury on the deceased killing him on the spot. Non-examination of the doctor in these circumstances will not adversely affect the prosecution case. 9. The testimony of PWs 3, 5 and 6, who are the eye-witnesses, clearly go to establish that the deceased has died due to knife injury inflicted near the left side of his neck by the appellant. But, even then the conviction of the appellant under Section 302 of the Indian Penal Code cannot be sustained, because, taking the evidence on record into consideration the case of murder has not been made out. It is a case of culpable homicide not amounting to murder. The appellant, therefore, can only be convicted under Section 304 of the Indian Penal Code. 10. In the First Information Report, it has stated that the appellant has taken the deceased to his house where both of them consumed liquor and thereafter they started quarrelling with each other during which the appellant hit the deceased by knife killing him on the spot. Prosecution witnesses have also testified that they reached at the house of the appellant after hearing India, which was caused due to quarrel between the appellant and the deceased. During the quarrel the appellant inflicted the knife injury on the left side of the neck of the deceased causing his death. It was in a heat of passion upon a sudden quarrel between them that the appellant killed the deceased. It is a case of culpable homicide not amounting to murder. During the quarrel the appellant inflicted the knife injury on the left side of the neck of the deceased causing his death. It was in a heat of passion upon a sudden quarrel between them that the appellant killed the deceased. It is a case of culpable homicide not amounting to murder. The appellant, therefore, could not have been convicted under Section 302 of the Indian Penal Code. His case is covered by Section 304, Part I, of the Indian Penal Code because the appellant has caused such injury is likely to cause the death of the deceased. Therefore, his conviction is altered from Section 302 to Section 304, Part I, of the Indian Penal Code and, accordingly, his sentence is commuted to ten years imprisonment. 11. This appeal is dismissed with the modification in the impugned judgment and order of conviction and sentence passed by the Additional Sessions Judge, Simdega in Sessions Trial No. 238 of 1989 against the appellant to the extent as mentioned hereinabove. The appellant, who is in custody is directed to be released forthwith if, he has already served the period of sentence as ordered by this judgment, unless required in any other case(s). A.K.Prasad, J. 12 I agree.