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2007 DIGILAW 229 (PAT)

Binod Choudhary v. State Of Bihar

2007-02-01

SHIVA KIRTI SINGH, SUBASH CHANDRA JHA

body2007
Judgment 1. This, appeal is directed against judgment and order dated 19th January, 2002, passed by learned 1st Additional Sessions Judge, Banka, in Sessions Case No. 126 of 1998, arising out of Bounsi P.-8 case No. 108 of 1997. Whereby the sole accused-appellant has been held guilty of the charge u/s. 302 Indian Penal Code, 1860 and sentenced to rigorous imprisonment for life. 2. The prosecution case in short is that on 14.10.1997 in the morning hours the deceased, who was a cousin brother of the appellant, had gone to see his crops in the field and had found that some catties had grazed his crops. He came back angry and after some time when he was hurling abuses directed against nobody in particular, this appellant mistook abuses to be directed against him and entered into verbal altercation with the deceased. The accused-appellant became so angry that he went inside his house which is adjacent to the house of the deceased, brought out a Bhala and gave a single blow which hit on the left side chest of the deceased. The deceased could barely manage to reach a cot kept at Darwaja and fell down there on the cot and died soon thereafter. 3. The fardbeyan of the informant, Ghutri Devi (P.W.8), widow of the deceased Narsingh Choudhary was recorded in the village on the date of occurrence itself and formal F.I.R. was also drawn at the police station on the same date. After seizing bhala, which is said to be blood stained and thrown by the accused after the occurrence, the investigation was conducted by P.W.9 Raj Kishore Prasad, Sub Inspector of Police. Ha has proved the inguest report as Ext.5. The post mortem examination was also got conducted by a doctor and the post mortem report has been proved as Ext.6. After recording the evidence of witnesses and completing investigation chargesheet was submitted against the accused-appellant. He denied the charges and claimed to be innocent but after trial he has been convicted by the impugned judgment and sentenced to rigorous imprisonment for life, as noticed earlier. 4. The prosecution in order to prove its case has examined altogether 12 witnesses. Besides the informant, who has claimed to be an eye-witness. P.W.1, Kamli Choudhary and P.W.2 Darshan Marandi have also claimed to be eve-witnesses. P.Ws. 4. The prosecution in order to prove its case has examined altogether 12 witnesses. Besides the informant, who has claimed to be an eye-witness. P.W.1, Kamli Choudhary and P.W.2 Darshan Marandi have also claimed to be eve-witnesses. P.Ws. 3, 4 and 6 are hearsay witnesses and have been examined only to corroborate the prosecution case that on the date of occurrence villagers assembled on hearing the news of killing of the deceased and they were told the name of the appellant and they saw the deceased with injury in his chest. P.W.7 has claimed to be an eye-witness only of the latter Dart of occurrence wherein he saw the accused running away with bhala and saw the deceased with injury in chest. 5. P.W.5 Nabin Choudhary has been examined as an eye-witness of the alleged occurrence. He has proved his signature on inquest report as well on seizure list but on going through his evidence we find that he has tried to help the defence by claiming that he was never examined by the police earlier although I.O., P.W.9, has claimed that he has recorded the statement of P.W.5 during investigation. The trial court has also recorded the demenour of this witness with conclusion that he is untruthful. On going through his deposition we are in agreement with the trial court and find that P.W.5 is not trustworthy and cannot be, relied upon either in support of the prosecution or in support of the defence. 6. No detail scrutiny of the oral evidence is required to be done in this appeal because the oral evidence is consistent that this appellant first had verbal altercation on hearing abuses of the deceased and then came with bhala and caused one single injury in the chest of the deceased. The medical evidence appears to support the prosecution case because the doctor also found a penetrating injury on the left side of the chest which had damaged the heart and caused death. 7. This Court finds no difficulty in accepting the finding of the trial court that this appellant caused the death of the deceased as alleged by the prosecution. 8. 7. This Court finds no difficulty in accepting the finding of the trial court that this appellant caused the death of the deceased as alleged by the prosecution. 8. Learned Counsel for the appellant has, however, advanced submission that even if the allegation of the prosecution be accepted, the appellant should not have been held guilty of the offence u/s. 302 Indian Penal Code, 1860 because on taking an overall view of the entire circumstances in which a single bhala injury was inflicted by accused-appellant on his cousin brother, the case appears to be covered by Exception 1 of sec. 300 of the Indian Penal Code which provides that culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation. He has further submitted that none of the three provisos to Exception 1 apply in the facts of the case but as mentioned in the Explanation to Exception 1, whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact which requires to be decided. 9. On going through the prosecution case carefully as appearing from the evidence of prosecution witnesses including the informant it is found that the prosecution has not allied that the accused had any intention of causing death of the deceased. The whole occurrence even in the words of the prosecution was sudden on account of alleged mistake on the part of the accused in thinking that the abuses hurled by the deceased were directed against him. It was on account of abuses being hurled by the deceased that the accused came out of his house and entered into verbal, altercation with the deceased and apparently he got infuriated further and went inside his house, came out with a bhala and apparently in a fit of rage, whilst deprived of power of self-control inflicted a single injury with bhala in his hand which proved fatal causing death. 10. The relationship between the deceased and the accused, lack of any motive to kill the deceased and the aforesaid circumstances noticed earlier leave no manner of doubt that in the present case it cannot be held that the accused had any intention to cause death of the deceased. 10. The relationship between the deceased and the accused, lack of any motive to kill the deceased and the aforesaid circumstances noticed earlier leave no manner of doubt that in the present case it cannot be held that the accused had any intention to cause death of the deceased. But clearly the injury on the chest was deep enough by a penetrating weapon and sufficient in the ordinary course of nature to cause death. The accused even though under grave provocation must be presumed to have inflicted such injury with intention of causing bodily injury to the deceased. Since bodily injury to the deceased was sufficient in the ordinary course of nature to cause death, ordinarily the act of the accused would have amounted to offence of murder but as discussed earlier the facts and circumstances show that the act of the accused falls under Exception 1 of Sec. 300 Indian Penal Code, 1860 Since the single blow appears to have been given by the appellant whilst deprived of power of self-control due to grave and sudden provocation, the offence committed by the accused-appellant must be held to be culpable homicide not amounting to murder and, therefore, punishable under Sec. 304 (part 1) of the Indian Penal Code, 1860 11. In view of aforesaid discussion and finding the conviction of the appellant under sec. 302 Indian Penal Code, 1860 is set aside and altered to conviction under Section 304 (part 1) Indian Penal Code, 1860 12. On point of sentence it has been submitted that the appellant has to support his family and children. There is no criminal antecedent attached to the appellant and he has remained in custody since 20th October, 1997, i.e., for about nine years three months. Actual custody for more than nine years, in our view, would meet the ends of justice in this case. Hence, the appellant is sentenced to rigorous imprisonment for the period already undergone by him in jail custody. 13. In the result, this appeal is dismissed with the aforesaid modification in the charge, conviction and sentence. Since the appellant is in custody, hence he is directed to be released forthwith if not required in any other case.