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2001 DIGILAW 375 (PAT)

Surendra Kurmi v. State Of Bihar

2001-04-24

A.K.SINHA, R.N.PRASAD

body2001
Judgment R.N.Prasad, J. 1. The sole appellant has been convicted for the offence under Section 302 of the Indian Penal Code and has been sentenced to undergo imprisonment for life vide judgment and order dated 4.7.1994 passed by the Sessions Judge, Gopalganj in S.T. No. 107/92. 2. Informant Bandhu Manjhi, Chaukidar, gave his fardbeyan on 30.3.1991 at about 9 p.m. that while he was returning after doing his duty at matriculation examination and when he reached near the house of deceased Jamshed Mian, he heard some alarm. He went there and found Jamshed Mian lying in injured condition. He saw that appellant was running away with a blood stained dagger in his hand. He raised alarm and chased but the appellant succeeded in running away after throwing the blood stained dagger. He returned and picked up the said dagger and went near Jamshed Mian who informed him that there was some altercation between him and the appellant and the appellant stabbed him in his abdomen. With the help of other persons, he took Jamshed Mian to Manjhagarh Hospital and from thereto Gopalganj Hospital for treatment but he died in the hospital at Gopalganj. 3. On the aforesaid fardbeyan formal first information report was drawn, investigation was taken up and on completion of investigation charge- sheet was submitted against the appellant. The Court took cognizance and committed the case to the Court of Sessions for trial. The trial Court convicted the appellant as indicated above. 4. The defence of the appellant was that he was innocent and was falsely implicated in the case out of enmity and village politics. 5. The prosecution in support of its case examined six witnesses, out of whom, PWs 2 and 3 claimed to have seen the appellant running away with a blood stained dagger. PW 4 is the informant and he also claimed to have seen the appellant running away with blood stained dagger. PW 5 claimed to have seen the occurrence. PW 1 is the Doctor, who held post-mortem over the dead body of the deceased. PW 6 is the Investigating Officer. 6. PW 5 is a full fledged eye witness. His evidence is that on 30.3.1991 at about 7 p.m. he was returning from Manjha Bazar. When he reached in front of house of Jamshed Mian, he saw the appellant and Jamshed Mian quarrelling. PW 6 is the Investigating Officer. 6. PW 5 is a full fledged eye witness. His evidence is that on 30.3.1991 at about 7 p.m. he was returning from Manjha Bazar. When he reached in front of house of Jamshed Mian, he saw the appellant and Jamshed Mian quarrelling. The appellant in the meantime stabbed Jamshed Mian in abdomen. Jamshed Mian raised alarm on which two ladies came out from his house. Other persons also assembled there. However, appellant succeeded in running away with the blood stained dagger in spite of chase by the Chaukidar, PW 4. In cross-examination the witness stated that Jamshed Mian and the appellant were quarrelling in the land of Dhobi quite adjacent to the house of Jamshed Mian. In the field wheat crop was standing. PW 2 is mother of the deceased and PW 3 is wife of the deceased. Their evidence is that on hearing alarm they came out from the house and saw that Jamshed Mian was lying on the ground in injured condition. The appellant was running away with a blood stained dagger. PW 4 is the informant. His evidence is that on hearing some alarm near the house of Jamshed Mian, he went there and found Jamshed Mian lying on the ground in injured condition and the appillant was running away with a blood stained dagger. He chased him but he succeeded in running away after throwing the blood stained dagger. He took the blood stained dagger and produced it before the police. PW 1 is doctor who held post-mortem over the dead body and found injury on the person of the deceased. One was wound of entry and the other was of exit. The Doctor opined that injury was caused by sharp cutting weapon like dagger and the injury was sufficient to cause death in ordinary course of nature. Therefore, it appears that oral evidence is corroborated by the evidence of the Doctor with regard to use of weapon and cause of death. 7. Learned counsel for the appellant, however, pointed out that conviction of the appellant under Section 302, IPC is not justified as there was no intention to kill rather there was some altercation between the appellant and the deceased and at the spur of the moment appellant is alleged to have given a dagger blow. 7. Learned counsel for the appellant, however, pointed out that conviction of the appellant under Section 302, IPC is not justified as there was no intention to kill rather there was some altercation between the appellant and the deceased and at the spur of the moment appellant is alleged to have given a dagger blow. Therefore, it can safely be said that the case falls under Section 304, Part II, IPC. On the other hand learned counsel for the respondent submitted that blow was so intensive that it pierced the body. Therefore, from the act intention can be gathered and as such conviction of the appellant under Section 302, IPC cannot be said to be unjustified. 8. Having considered the submission made by learned counsel for the parties, this much is obvious that PW 5, who is said to be a full fledged eye-witness has stated that there was some quarrel between the deceased and the appellant and during quarrel the appellant gave a dagger blow to the deceased. The other witnesses examined on behalf of the prosecution also stated that they went near the place of occurrence after hearing hue and cry raised by the deceased. Therefore, it is evident that occurrence took place at the spur of the moment when there was quarrel between the appellant and the deceased. Moreover, nothing has been brought on the record to show that there was any intention/motive to kill the deceased. The Apex Court in the case of State of U.P. V/s. Indrajeet alias Sukhatha, 2000 Cr LJ 4663 2000 (3) East Cr C 1042 (SC), has held that in absence of any positive motive being either attributed or alleged or proved by the prosecution,. there is no clinching circumstance or evidence to reasonably establish the culpability of the accused for a charge of murder. Absence of intention to cause the death coupled with the lack of knowledge that death would be inevitably caused on account of the injury would make the offence fall only under Section 304, Part II of the Indian Penal Code and not under Section 302 of the Indian Penal Code. Absence of intention to cause the death coupled with the lack of knowledge that death would be inevitably caused on account of the injury would make the offence fall only under Section 304, Part II of the Indian Penal Code and not under Section 302 of the Indian Penal Code. In the instant case, it has already been stated that there is nothing on the record to show that there was any intention/motive to commit murder rather occurrence took place at the spur of the moment and as such in our opinion, conviction of the appellant under Section 302, IPC is not justified. It has been pointed out by the learned counsel for the appellant that appellant is in jail with effect from 27.8.1991. Thus the conviction of the appellant is converted under Section 304, Part II of the Indian Penal Code and he is sentenced to the period already undergone. 9. With the modification, as indicated above, the appeal is dismissed. The appellant is in jail. He is directed to be released forthwith if not required in any other case.