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2002 DIGILAW 50 (PAT)

Sanjhla Chore @ Durga Chore v. State of Bihar

2002-01-10

A.K.VERMA, S.N.JHA

body2002
JUDGMENT S.N. JHA & A.K. VERMA, JJ.:-The sole appellant of this appeal has been convicted under Section 302 of the Indian Penal Code and sentenced to rigorous imprisonment for life. 2. The prosecution was set in motion on the fardbeyan of Dhani Hasda of village Singhia Santhali Tola, P.S. Prampur, District Katihar. On 15.7.1993 at 05.00 P.M. he stated before the Officer-in-Charge of Prampur Police Station that while he was sleeping in his house at about 01.00 P.M. he woke up on hearing noise when he was informed by his wife that the appellant had assaulted his mausis Makhi and Barki by garasa as a result of which they have died. The cause of occurrence was that the appellant had demanded chicken from mausis which they did not give and for this he killed them. 3. On the basis of the said fardbeyan which was recorded at the place of occurrence, namely, village Singhiya Santhali Tola within Prampur Police Station of Katihar district, Pranpur P.S. Case No. 24 of 1993 was registered and the investigation commenced. The Officer-in-Charge held inquest, sent the bodies for post mortem, took the statements of witnesses and after completing the necessary formalities submitted charges against the appellant and that is how he was put on trial. 4. At the trial the prosecution examined eight witnesses to prove its case. They are P.W.1, Madhusudan Jha, who proved the signature eon the first information report, P.W.2 Churkha Tudda a hear say witness who stated that he saw the dead bodies at the place of occurrence and was informed that the appellant had illed them. P.W. 3 Pardhan marandi and P.W. 4 Guru Murmu who proved the seizure of the blood stained earth from the place of occurrence. P.W. 5 Barhmdeo Mandai simply stated that he had seen the dead bodies in the Angan of the deceased. P.W. 6 Sanjahli Kisku who claimed to have seen the occurrence and examined herself as eye witness. P.W. 7 Dayanand Rai is the Investigating Officer of the case. P.W. 8 is Dr. Sailendra Mohan who held the post mortem. 5. It would, thus, appear that there is only one material witness on the point of occurrence, namely, P.W. 6 Sanjahli Kisku. She is, in fact, the wife of the informant and as mentioned above, as per the informant he was informed about the occurrence by her. P.W. 8 is Dr. Sailendra Mohan who held the post mortem. 5. It would, thus, appear that there is only one material witness on the point of occurrence, namely, P.W. 6 Sanjahli Kisku. She is, in fact, the wife of the informant and as mentioned above, as per the informant he was informed about the occurrence by her. The fate of the case, it would appear, rests on the evidence of P.W. 6 Sanjahli Kisku apart from the Investigating Officer and the Doctor so far as objective findings are concerned. 6. Sanjahli Kisku stated in her evidence that at about 12 noon on the day of occurrence while she was sewing mat the appellant came there and asked why they were always sick to which the deceased said they could hardly give any answer for the same. The appellant thereafter asked them to leave the place to which they did not agree. On this appellant took the garasa from the verandah and assaulted one of the deceased Makhi and when the other deceased Barki went to save her she too was assaulted. The (Sanjhali Kisku) rushed to the place and raised hulla. However, as marriage ceremony was taking place nearby, persons did not immediately reach there. She the informed her husband i.e. Dhanai Hasda who was ill and sleeping in the Dhaba. The appellant committing the crime fled away. 7. In her cross examination Sanjahli Kisku stated that the Angan of the appellant was situated one house after the house of the deceased. She gave further details of the occurrence as to the manner of assault. Nothing came in the cross examination to doubt her claim of seeing the occurrence. It appears from her evidence that she was at a distance of 5 to 10ft. from the place where the occurrence took place and, thereafter, there was absolutely no difficulty in watching the manner in which the assault took place. 8. Counsel for the appellant submitted that in the fardbeyan the informant had stated about the demand for chicken. As a matter of fact in her statement under Section 164 of the Criminal Procedure Code Sanjhali Kisku also had stated about such demand but she did not mention about it in her evidence which creates doubt about the veracity of her evidence. As a matter of fact in her statement under Section 164 of the Criminal Procedure Code Sanjhali Kisku also had stated about such demand but she did not mention about it in her evidence which creates doubt about the veracity of her evidence. In this connection counsel also pointed out that while in her evidence in Court Sanjali stated that she was sewing mat in her statement under Section 164 Cr.P.C. she stated that she was sitting in the angan with child in her lap when the appellant came there and demanded chicken. These so-called discrepancies are not such as to create doubt about the veracity of her evidence. As a matter of fact in her statement under Section 164 of the Criminal Procedure Code the witness had stated that the appellant had first made demand for chicken and, thereafter, complained about the illness which she referred to later part in her evidence, as noticed above. 9. It appears that the occurrence took place as the deceased refused to oblige the appellant either in his demand for chicken or his command to leave the place which made him angry to the extent that he took the garasa lying on the verandah and started assaulting them. Sanjhali did not say in her evidence that the deceased had brought garasa or any other weapon. Her evidence in fact indicates that the garasa was lying on the verandah which the appellant took and started assaulting. It, thus, appears that the occurrence was not the result of any premeditation. The occurrence took place on the super of moment in a fit of anger. The response and reaction varies from person to person. While one person may not react even on provocation, another person may react to simple refusal of demand. In the instant case, the appellant seems to be a person of highly excitable nature. The deceased's refusal to oblige him apparently made him angry and he took the garasa lying nearby and gave blow on the deceased, one after the other as a result of which they died. There was marriage ceremony going on nearby. Consumption of liquor on the eve of marriage is a common phenomenon the chance of the appellant consuming the liquor and getting intoxicated can not be ruled out. 10. There was marriage ceremony going on nearby. Consumption of liquor on the eve of marriage is a common phenomenon the chance of the appellant consuming the liquor and getting intoxicated can not be ruled out. 10. In the facts and circumstances, we are of the view that the ends of justice would be served by convicting the appellant under Section 304 part II of the Penal Code instead of Section 302 of the Penal Code as the case seems to falls within the purview of Exception 4 of Section 300 of the Penal Code which provides that where homicide is committed without provocation and the appellant in the heat of passion on a sudden quarrel it would not amount to murder. The appellant is in jail for more than nine years and, therefore, sentence for the period already undergone would serve the ends of justice. 11. In the result, the appellant is convicted under Section 304 part II of the Penal code and sentenced to Imprisonment for period already undergone by him. With this modification in conviction and sentence, the appeal is dismissed. The appellant is directed to be released forthwith if not wanted in any other case.