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Jharkhand High Court · body

2009 DIGILAW 327 (JHR)

Barju Munda v. State of Jharkhand

2009-03-03

N.N.TIWARI, PRASHANT KUMAR

body2009
JUDGMENT This appeal is against the judgment of conviction and order of sentence passed by the learned Additional Sessions Judge, Seraikella, in Sessions Trial No. 419 of 1992, whereby the appellant has been convicted under Section 302 of the Indian Penal Code and sentenced to life imprisonment. 2. The prosecution case was initiated on the basis of the fardbeyan of Santi Mundaeen (P.W. 4), widow of the deceased Joto Munda. Prosecution case briefly stated is that on 9.2.1992, at-about 7 P.M., when the informant's husband Joto Munda was sitting outside his house, Barju Munda younger brother of the deceased came there and quarreled with the appellant. Munda Munda (P.W. 2), intervened and pacified the matter. Some time later Barju Munda again came over there and picked up a brick lying nearby and hurled on Joto Munda causing grievous bleeding injury in the back side of his head. Joto fell down and became unconscious and next day at about 12 noon, he succumbed • to the injuries and died. 3. Case was registered on the basis of the fardbeyan of the informant on next date i.e. on 10.2.1992. The informant explained that as the incident took place in the night and there was no male member in the house and the distance of the place of occurrence was 14 K.M., she could not inform the police in night. 4. After completion of investigation police submitted charge-sheet under Section 302 of the Indian Penal Code. Cognizance was taken of the said offence and case was committed to the court of sessions for trial. 5. Charge was framed against the accused appellant, to which he denied and pleaded not guilty. He took defence that Joto died due to excessive consumption of wine. 6. In order to prove the charge against the accused/appellant the prosecution examined altogether five witnesses, P.W. 1, Nand Kishor Prasad, is the doctor who had conducted the post-mortem of the deceased. P.W. 2 Munda Munda and P.W. 3 Narayan Singh Munda are the co-villagers. P.W. 4 Shanti Mundaeen, is the informant and P.W. 5 Prabhu Narayan Somal is a formal witness who proved formal F.I.R. and fardbeyan as (Ext.-2) and (Ext.-3) respectively. 7. Learned Trial Court on conclusion of the trial held the appellant guilty for committing offence under Section 302 of the Indian Penal Code and, convicted and sentenced him as aforesaid. P.W. 4 Shanti Mundaeen, is the informant and P.W. 5 Prabhu Narayan Somal is a formal witness who proved formal F.I.R. and fardbeyan as (Ext.-2) and (Ext.-3) respectively. 7. Learned Trial Court on conclusion of the trial held the appellant guilty for committing offence under Section 302 of the Indian Penal Code and, convicted and sentenced him as aforesaid. Learned Trial Court relied on the testimony of P.W. 4, who is the only eye-witness of the occurrence as well as the medical evidence of the Doctor-P.W. 1. 8. In this Jail Appeal, learned counsel Mr. Santosh Kumar Gautam, appeared as Amicus Curiae and assisted the Court on behalf of the appellant. He assailed the Trial Court's judgment mainly on the grounds that the conviction of the appellant on the sole testimony of P.W. 4 is not safe and sustainable. Doctor (P .W. 1), in cross-examination, has opined that the injuries found on the body of the deceased were fatal and caused by hard blunt substance but P.W. 2 and P.W. 3, have not supported the prosecution case. There is absence of motive in this case. It has been alternatively argued that even if the prosecution story is taken as it is, the• accused/appellant is said to have hurled a single brick causing injury in the back side of head. There was no pre-meditation and intention to kill. That was preceded by a quarrel. The incident was a result of provocation and in fit of anger. The said homicidal death does not amount to murder. 9. Learned APP supported the impugned judgment and submitted that though P.W. 4 is the only eye-witness in this case, her testimony is consistent and flawless, and is fully reliable. Her evidence coupled with the medical evidence establish the charge against the appellant. The Doctor has found lacerated wound on the occipital region 2" x 1" and the scalp was found full of blood clots over the cranial bone. The brain matter of occipital region was also found lacerated with the area 3" x 2". The Doctor has opined that the injuries were caused by hard and blunt substance. The evidence of P.W. 4 read with the medical evidence thus leads to the definite conclusion that the accused-appellant intentionally caused death of Joto Munda by giving severe blow with brick on the occipital region of the scalp. The Doctor has opined that the injuries were caused by hard and blunt substance. The evidence of P.W. 4 read with the medical evidence thus leads to the definite conclusion that the accused-appellant intentionally caused death of Joto Munda by giving severe blow with brick on the occipital region of the scalp. Learned Trial Court has rightly found the appellant guilty and convicted him on due appraisal and assessment of the evidences on record. 10. Having heard learned counsel appearing as amicus curiae and learned APP, we also thoroughly scrutinized the evidences on record. 11. It is true that P.W. 4 is the only eye-witness of the occurrence, but she has given vivid account of the incident. She has proved that the appellant, Barju Munda had caused fatal injury in the back side of the head of Joto Munda. The Doctor P.W. 1, who conducted the post mortem of the body of the deceased, has found the following injuries:- (a) Lacerated wound.-lacerated wound on the occipital region 2" x 1". Scalp was full of blood clots over the cranial bone. (b) Vault opened.-Maninges form, brain matter lacerated over the occipital area 3" x 2". 12. The doctor found the injury in the back side of the head of the deceased. The medical evidence thus fully corroborates the ocular evidence of the informant, P.W. 4. Though, quantity of the evidence may be said to be less, the quality is such that no other conclusion can be drawn except to believe the prosecution version that Joto Munda died due to the injury caused by the appellant on back side of his head. The evidence of P.W. 4 coupled with the medical evidence is thus consistent, cogent and trustworthy. Learned Trial Court has rightly come to the conclusion that the death of the deceased Joto Munda was as a result of the fatal assault by the appellant. 13. However, after meticulous appraisal of the facts and evidences on record, we find 'intention to cause death and pre-meditation conspicuously' absent in this case. We further find that the alleged incident took place after a quarrel between the deceased and the accused. The quarrel took place in after of passion. 13. However, after meticulous appraisal of the facts and evidences on record, we find 'intention to cause death and pre-meditation conspicuously' absent in this case. We further find that the alleged incident took place after a quarrel between the deceased and the accused. The quarrel took place in after of passion. In the fardbeyan, as also in the evidence it has come from the mouth of the informant that there was exchange of abusive languages between the accused and the deceased and quarrel followed by the assault by the accused. We find absence of pre-meditation. The deceased (sic-accused?) was not having any arm. He picked up a brick lying nearby and hurled at the deceased. The death was not instantaneous but the appellant did not repeat assault. Absence of elements of premeditation and intention brings out this case from the ambit of culpable homicide amounting to murder. 14. Learned Trial Court failed to take into consideration the said legal aspect and has erroneously convicted the appellant under Section 302 IPC. Considering the evidences of the prosecution witnesses, on all fours, we find that the offence committed by the appellant comes within the fold of Section 304 Part-II IPC. 15. In view of the above we set aside the appellant's conviction under Section 302 I.P.C. and convert into conviction only under Section 304 Part-II IPC and accordingly, modify the sentence to the period already undergone by the appellant. 16. This appeal is, accordingly, dismissed with the said modification in conviction and sentence. The appellant, above named, shall be released forthwith, if not wanted in any other case.