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2002 DIGILAW 671 (JHR)

Ran Singh Munda v. State of Bihar

2002-06-20

VISHNUDEO NARAYAN

body2002
Judgment Vishnudeo Narayan, J.- This appeal has been directed by the sole appellant named above against the judgment and order dated 27.3.1996 passed in S.T.No. 351/91/T.R. No. 48/94 by Smt. Shakuntala Sinha, Addl. Judicial Commissioner, Khunti whereby the appellant was found guilty for the offence punishable under Section 304 and not under Section 302 I.P.C. and he was convicted and sentenced to undergo R.I. for five years and to pay a fine of Rs. 1,000/- and in default thereof to undergo R.I. for six months. 2. The prosecution case has arisen on the basis of the F.I.R. of Chaukidar 8/6 Viruaghashi recorded by Sri N. Kumar, 0/ C of P.S. Murhu, Khunti, Ranchi on 23.3.1991 at 12.00 O'clock in the day regarding the occurrence which is said to have taken place on 22.3.1991 at 6.30 P.M. at Village Kitahatu Dauri Pirihi, P.S. Murhu, District Ranchi. 3. The prosecution case is that the informant had produced the injured appellant along with a blood stained iron rod and has stated that the appellant had come to his house at 8.00 P.M. on 22.3.1991 and informed him that he has committed the murder of his elder brother Birsa Munda by iron rod at 6.30 P.M. and he has produced before him one blood stained iron rod from which he has committed the murder of Birsa Munda. It is further alleged that on the day of the occurrence the appellant as well as Birsa Munda deceased has gone to the market and Birsa Munda had returned to his house from the market earlier and the appellant returned to his house at 6.00 O'Clock in the evening. It is alleged that Birsa Munda came to the house of the appellant armed with Tangi (axe) and made violent marks on the wall of the house of the appellant by the said Tangi and called upon the appellant to come out of his house as he will commit his murder along with his wife and at this the appellant came out of his house armed with an iron rod and the appellant requested Birsa Munda not to assault him. The prosecution case further is that in the meantime appellant Birsa Munda gave a blow from his Tangi which was warded of by the appellant by the said iron rod but an injury has been caused near the shoulder of the appellant and again appellant requested Birsa Munda not to assault by Tangi but all in vain. It is alleged that in spite of the request of the appellant Birsa Munda again gave a blow from his Tangi which caused an injury near the ear of the appellant and at this the appellant gave a blow by iron rod on the head of Birsa Munda and he fell down and died. It is also alleged that the informant went to the place of the occurrence in the company of the appellant and found the dead body of Birsa Munda near the tamarind tree and there was profuse bleeding from his head and blood has also fallen near the place of occurrence and there was also a blood stained axe lying there. Lastly it has been alleged that genesis of occurrence is that Birsa Munda deceased wanted to demolish the portion of the house of his share and due to this there was differences between him and the appellant. 4. The appellant has pleaded not guilty to the charge levelled against him and has claimed himself to be innocent and to have committed no offence and that he has been falsely implicated in this case. 5. The prosecution has examined seven witnesses to substantiate the charge levelled against the appellant. P.W. 2 is the informant of this case. P.W. 3 is the widow of the deceased of this case. P.W. 6 is the wife of the appellant and P.W. 4 is the alleged independent witness of the vicinity of the place of occurrence and they have turned hostile. P.W. 1 is the witness of the seizure of the blood stained earth and Tangi from the place of the occurrence and Ext. 1 series are his signatures on the inquest report and the seizure lists. P.Ws. 5 & 7 are formal witnesses. Post mortem report of the deceased of this case has been proved by C.w. 1, who is the father of the deceased doctor, who has conducted the post mortem examination. The I.O. has not taken oath in this case for the prosecution. 6. P.Ws. 5 & 7 are formal witnesses. Post mortem report of the deceased of this case has been proved by C.w. 1, who is the father of the deceased doctor, who has conducted the post mortem examination. The I.O. has not taken oath in this case for the prosecution. 6. It has been submitted by the learned counsel for the appellant that the learned court below did not consider the facts, circumstances and the oral and documentary evidence on the record in proper perspective and have gravely erred in coming to the finding of the guilt of the appellant. It has also been submitted that there is no legal evidence at all on the record to show that the assault on the person of the deceased by the appellant, as alleged, is intentional one to commit his murder rather it appears as per the evidence on the record that the assault on the person of the deceased by the appellant has been made as per his right of private defence to save himself from being killed. It has also been submitted that extra judicial confession of the appellant made before the informant, who is the Chaukidar, is a weak evidence and no reliance can be placed en such an evidence. Lastly it has been submitted that the existence of sharp cut injuries on the person of the deceased is in conflict with the manner of assault by iron rod by the appellant as alleged. 7. Learned A.P.P. has submitted that in view of the evidence on the record there is no illegality at all in the impugned judgment and order of the learned court below. 8. It is pertinent to mention at the very outset that informant is not the ocular witness of the occurrence in question and the F.I.R. has been drawn on the statement of P.W. 2, the informant, on the information given to him by the appellant himself but the appellant in his statement under Section 313 Cr.P.C. had retracted and has stated that he h3.s been falsely implicated in this case. However, there is testimony of P.W. 2 the informant and P.W. 3, the widow of the deceased, in support of the prosecution case. The post mortem report proved by C.w. 1 is Ext. 5 in this case. C.w. 1 has deposed that Dr. However, there is testimony of P.W. 2 the informant and P.W. 3, the widow of the deceased, in support of the prosecution case. The post mortem report proved by C.w. 1 is Ext. 5 in this case. C.w. 1 has deposed that Dr. Shashi Kant Sinha is his son and post mortem report is per his pen and bears his signature and he was posted in the Sub-divisional Hospital, Khunti and from there he was transferred and thereafter he has died. It appears from the post mortem report that Dr. Shashi Kant Sinha has found the following ante mortem injuries on the dead body of the deceased :- (i) Sharp cut longitudinally placed injury behind right ear cutting the middle part of pinna of ear of size 3" x ;" x 3" deep on and on exploration the bone beneath the injury is cut sharply subdural space contained clotted blood (sic) and brain substance is cut. (ii) Sharp cut injury ½' x ½" x scalp deep longitudinally placed on right occepital prominence. (iii) Sharp cut injury 3" x ½" x scalp deep placed on the middle of scalp longitudinally placed. It further appears from the• post mortem report that death has been caused due to shock and haemorrhage and cardio failure caused by injuries aforesaid. The post mortem report (Ext. 5) is admissible in evidence as the maker thereof is dead. P.W. 2, the informant, has deposed that the appellant had come to his house and told him that he has committed the murder of his brother Birsa Munda by iron rod and he went to the place of occurrence in the company of the appellant and found the dead body of the deceased lying in the courtyard of the house near the tamarind tree. He has further deposed that he remained at the place of the occurrence for the whole night and in the morning he came to the police station along with the appellant and the iron rod and the Tangi. In his cross examination P.W. 2 has deposed that appellant has told him that he has assaulted the deceased when the deceased has come• to his house to assault him and he has assaulted the deceased when the deceased has assaulted the appellant by Tangi. He has also deposed that he has found injuries near the shoulder (hasuli) and ear on the person of the informant. He has also deposed that he has found injuries near the shoulder (hasuli) and ear on the person of the informant. P.W. 3, the widow of the deceased, has deposed that the appellant has assaulted Birsa Munda on his head by iron rod and Birsa Munda fell down and died and the dead body of Birsa Munda is lying near the tamarind tree. At page 3 of her cross examination P.W. 3 has deposed in the most clear and unequivocal terms that deceased Birsa Munda had come out of his house armed with Tangi to commit the murder of the appellant. She has also deposed that the appellant has given one blow by iron rod on the deceased. She has further deposed that she has asked the deceased as well as the appellant not to quarrel but all in vain. P.W. 1 has deposed that he has seen the dead body of the deceased at the door of the house of the appellant near the tamarind tree. P.W. 6, the wife of the appellant, has deposed that there had been quarrel between the appellant and the deceased in the night of the occurrence after their return from the market and deceased had come to her house armed with a Tangi and he has started giving violent marks at the door of the house. She has also deposed that the appellant had requested the deceased not to quarrel and at his the deceased gave a blow by Tangi causing injury near the neck of the appellant. She has further deposed that the appellant has not given any blow by iron rod on the head of the deceased and at this stage she was declared hostile by the prosecution. In her cross examination she has deposed that the deceased was asking the appellant to come out of her house along with her so that he may commit their murder and when the appellant came out of his house the deceased has given a blow on the appellant by axe which caused injury near his ear and the appellant was requesting the deceased not to assault him. She has further deposed that the appellant was escaping from there and entering into his house to save himself and he was being chased by the deceased and in the course the deceased clashed against the 'chaukhat' of the house and he fell down and died. She has further deposed that the appellant was escaping from there and entering into his house to save himself and he was being chased by the deceased and in the course the deceased clashed against the 'chaukhat' of the house and he fell down and died. She has also deposed that the appellant was hospitalized for his treatment and remained in the hospital for eight days. It therefore appears from the evidence of P.W. 3 read with the evidence of P.W. 6 that the deceased had come out of his house armed with Tangi and he went to the house of the appellant and asked the appellant to come out of his house along with his wife so that he will commit their murder and he gave violent marks at the wall of the house of the appellant and the appellant came out of his house with an iron rod and he requested the deceased not to quarrel but all in vain and the deceased gave two blows by the Tangi which were warded of though causing injury on the shoulder and the ear of the appellant and at this the appellant also gave a blow by iron rod on the head of the deceased which has caused the death of the deceased. The I.O. has not taken oath in this case and the objective finding of the I.O. regarding the place of occurrence along with the alleged seized weapon of assault as well as Tangi (axe) have not been brought on the record and no explanation is forthcoming on the record for the non-examination of the I.O. and it appears in the facts and circumstances of this case that a serious prejudice has been caused to the appellant as he stands debarred from eliciting the facts in the cross examination of the I.O. showing his innocence. No ocular witness of the vicinity of the place of occurrence is also forthcoming to support manner of the occurrence of the prosecution case as alleged. There is also no iota of evidence on record to prove the genesis of the alleged occurrence. No ocular witness of the vicinity of the place of occurrence is also forthcoming to support manner of the occurrence of the prosecution case as alleged. There is also no iota of evidence on record to prove the genesis of the alleged occurrence. It appears in the facts and circumstances of this case and in view of the evidence of P.W 3 read with the testimony of P.W 6 and P.W 2 that had the appellant not assaulted the deceased, there was every likelihood of the appellant being killed by the deceased by Tangi and the appellant had right of private defence of his body even extending causing death of the deceased in the facts and circumstances of this case. The alleged homicide of the deceased in self-defence of the appellant appears to be justified in the facts and circumstances of the case and also in view of the fact that the appellant had reasonable apprehension that the assault by the deceased on him will result in his death. It further appears in view of the evidence on the record that the deceased himself was aggressor in this case. The learned court below did not consider the right of private defence of the appellant in the facts and circumstances of this case and has gravely erred in finding the appellant guilty for the offence under Section 304 I.P.C. 9. There is merit in the appeal and it succeeds. The appeal is hereby allowed and the impugned judgment is hereby set aside. The appellant is not found guilty and he is acquitted and is also discharged from the liability of the bail bond.