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2007 DIGILAW 348 (JHR)

Jitu Munda v. State Of Bihar

2007-04-23

AMARESHWAR SAHAY, DHANANJAY PRASAD SINGH

body2007
JUDGMENT 1. Sole appellant Jitu Munda stands convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to serve rigorous imprisonment for life, by the Additional Judicial Commissioner, Khunti in Sessions Trial No. 691 of 1993. 2. Brief facts leading to this appeal are that deceased Guruwari Devi was married with the appellant for last two years. How ever, there was quarrel between them and deceased used to take shelter in her parents house situated In Mauza - Aradih, Police Station - Bundu frequently. According to P.W. 1, Sonabans Mahli, on 25-9-1992 she along with P.W. 3 and P.W. 6 was breeding grass from the paddy fields when the appellant came there armed with a tangi and assaulted the deceased, resulting in her death on the spot. The females could not resist. Villagers working in nearby fields assembled. In the meantime, the appellant managed to flee. 3. The mailer was reported to Bundu Police Station next, clay, on which Bundu Police Station Case No, 76 of 1992 under Sections 324 and 307 of the Indian Penal Code was registered against the appellant. The police Investigated the case and finally submitted charge shed under Sections 324, 307 and 302 of the Indian Penal Code. The appellant was committed to the Court of Session where he was charged under Section 302 of the Indian Penal Code on 24-8-1994. The appellant pleaded not guilty. However, he was held guilty and sentenced to serve rigorous imprisonment for life under Section 302 of the Indian Penal Code. 4. Mr. B.M. Tripathy, learned Counsel appearing on behalf of the appellant at the outset submitted that the appellant has remained in custody rigid from September 1992 and completed more than fourteen and half years in custody. It is further submitted that although the allegation of single blow was made, the doctor has found two injuries on the deceased vide Ext. 2 showing one stitched wound and another lacerated wound on the parietal occipital region of head. According to learned Counsel, the learned trial Court has not considered the contradictions in the evidence of so-called eyewitnesses and in absence of any independent witnesses; the appellant may be acquitted from the charge. Mr. Tripathy, further pointed out that the assault, if any, proved was not with intention to cause death In view of the injuries found vide Ext. According to learned Counsel, the learned trial Court has not considered the contradictions in the evidence of so-called eyewitnesses and in absence of any independent witnesses; the appellant may be acquitted from the charge. Mr. Tripathy, further pointed out that the assault, if any, proved was not with intention to cause death In view of the injuries found vide Ext. 2, He further tried to show that the death of deceased as alleged took place in the fields and the informant was not in the fields. Therefore, the story of prosecution should have been discarded. It is also pointed out that the investigating officer of this case having not been examined defence has been prejudiced seriously. 5. We have gone through the evidence on records to ascertain the truth as well as to assess the defence taken by the appellant. The prosecution has examined altogether seven witnesses Including the informant, P.W. 2 Madan Bans Mahli has been declared hostile, P.W. 4 Mangal Bans Mahli is brother but he is a hearsay witness of the occurrence, This leaves at the evidence of P.W. 3, P.W. 6. P.W. 1 has admitted truthfully that when he heard bulla he went there to find the deceased lying with serious injuries on her head. This fact has been supported by P.W. 3 Subabans Mahli and P.W. 6 Sonwari Devi, the mother and sister-in-law of the deceased respectively, who saw the appellant causing assault upon the deceased. According to them, when they were taking out grass from the paddy fields, the appellant all of a sudden came there, gave fatal blow on her. resulting in serious injuries on left parietal region and ultimately death of deceased. They have supported the prosecution story during their lengthy cross-examination. The mother further asserted that on her alarms raised, witnesses came. However, she truthfully admitted that her son P.W. 1 and P.W. 4 have gone out to tender cow and they had not seen the occurrence. P.W. 4 similarly asserted that when he came back, then he saw the deceased and reported the matter to police. P.W. 6 Sonwari Devi, wife of P.W. 4 is eyewitness of the occurrence. During cross-examination, she admitted that when people started coming towards the fields, the appellant fled away. P.W. 4 similarly asserted that when he came back, then he saw the deceased and reported the matter to police. P.W. 6 Sonwari Devi, wife of P.W. 4 is eyewitness of the occurrence. During cross-examination, she admitted that when people started coming towards the fields, the appellant fled away. There are some contradictions regarding the number of assaults accounted by P.W. 3 and P.W. 6, which is quite natural and does not make material difference in the prosecution case. P.W. 1, the informant admitted in his examination-in-chief that these facts were stated to him by P.W. 3. Therefore, we find that these witnesses are truthful and have not added or changed any fact on the record. P.W. 7 is a formal witness proving the first information report, fardbeyan, inquest report etc. prepared by the investigating officer, as he was not available and marked Ext. 3, 4 and 5. 6. On careful scrutiny of the facts and circumstances discussed above, we are of the opinion that, the prosecution witnesses are truthful and deserve to be relied upon. The prosecution witnesses, P.W. 1, P.W. 3, P.W. 4 and P.W. 6 have proved beyond doubts that the appellant assaulted the deceased in the evening of 25-9-1992 resulting in her death. However, it has not come on records that the assault was made with intention to cause death and blows were repeated to fulfil this desire. It appears that the appellant in a fit of anger on the fateful day assaulted the deceased with the tangi in his hand for which he has already remained in custody from September 1992. We, therefore, find that the offence committed by him is squarely covered by Section 304 Part-I of the Indian Penal Code, culpable homicide not amounting to murder. Accordingly, we find and hold that the conviction of the appellant under Section 302 of the Indian Penal Code deserves to be altered to conviction under Section 304 Part-I of the Indian Penal Code. 7. In the result, the conviction of the appellant under Section 302 of the Indian Penal Code and sentence to serve rigorous imprisonment for life recorded by the learned Court below is hereby altered to one under Section 304 Part I of the Indian Penal Code and he is sentenced to serve rigorous imprisonment for ten years, i.e. the period already undergone by him in custody. With the modification aforesaid the appeal is hereby dismissed. Let the appellant who is in jail, be released from custody forthwith, if not wanted in any other case.