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Jharkhand High Court · body

2009 DIGILAW 800 (JHR)

Gobind Lugun v. State of Jharkhand

2009-05-19

N.N.TIWARI, PRASHANT KUMAR

body2009
JUDGMENT By Court.- The appellant was charged for committing murder of his brother Laksho Lugun. By the impugned judgment, the learned court below has held him guilty for the offence under Section 302 I.P.C. and convicted him. He has been sentenced to 'undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000/- and in default, to undergo rigorous imprisonment for three months. 2. The prosecution was initiated on the statement made by John Lugun on 23.10.1998 at about 1:00 p.m. 3. The prosecution case, in short, is that on 8.10.1998 at about 2:00 p.m. Gobind Lugun, brother of the deceased, assaulted the deceased with an axe on his shoulder and neck and the deceased sustained serious injuries. He was brought to the Rajendra Medical College Hospital (R.M.C.H.), Ranchi for his better treatment on 9.10.1998. In course of treatment, he succumbed to injuries and died on 21.10.1998 in the Hospital. On the basis thereof, the case was registered under Section 302 I.P.C. The Bariyatu Police sent the fardbeyan, inquest report and post mortem report to Sonua Police Station, as the deceased was assaulted within the jurisdiction of Sonua Police Station. Sonua Polite registered a formal F.I.R. under Section 302 I.P.C. against the appellant and took up investigation. 4. On completion of investigation, police submitted charge-sheet against the appellant and on that basis S.D.J.M., Porahat at Chaibasa took cognizance of the offence under Section 302 I.P.C. against the appellant and committed the case to the Court of Sessions. 5. The appellant pleaded not guilty and claimed to be tried. In order to prove the said charge against the appellant, the prosecution altogether examined nine witnesses:- P.W. 1, John Lugun @ Jawan Lugunthe informant and a co-villager; P.W. 2, Sukwari Lugun-wife of the deceased; P.W. 3, Mangri Lugun-aunt of the deceased; P.W. 4, Birsa Lugun-a co-villager; P.W. 5, Sukhram Lugun-another co-villager (declared hostile); P.W. 6, P.W. 7 and P.W. 8, were co-villagers; P.W. 9 is the doctor, who conducted autopsy on the dead body of the deceased Laksho Lugun. The Investigating Officer is not examined in this case. 6. P.W. 1, John Lugun, the informant, has supported the prosecution case and the version made in the fardbeyan. P.W. 2, Sukwari Lugun, the wife of the deceased, is an eye-witness to the occurrence. The Investigating Officer is not examined in this case. 6. P.W. 1, John Lugun, the informant, has supported the prosecution case and the version made in the fardbeyan. P.W. 2, Sukwari Lugun, the wife of the deceased, is an eye-witness to the occurrence. She has stated that while she was harvesting paddy crop in the nearby field and her husband was grazing cattle, there was a quarrel between the deceased and the appellant. The appellant then gave an axe blow on the neck of her husband Laksho Lugun causing incised cut wound on his neck. He fell down. She raised alarm. Several villagers who were working in nearby fields assembled. The accused appellant in the meanwhile fled away towards forest. The villagers chased but they could not catch hold of him. She with the help of co-villagers Naresh Lugun and John Lugun brought her injured husband home and thereafter they took him to RM.C.H., Ranchi for treatment. In course of treatment in the Hospital, he died after some days. P.W. 3, Mangri Lugun, a witness to the fardbeyan, has stated that on that day, on hearing the alarm raised by the deceased wife, she arrived there and saw this appellant fleeing away after assaulting Laksho Lugun on his neck with an axe. P.W. 4, Birsa Lugun, has deposed that he reached the place of occurrence after hearing the alarm, he saw Laksho Lugun injured and lying on the ground with blood oozing out from his neck and shoulder. He saw Gobind Lagun fleeing away from there. He has stated that the injured Laksho Lugun told him that his brother Govind Lugun assaulted him with an axe. P.W. 5, Sukhram Lugun, supported the occurrence but he stated that the deceased had not told him the name of the accused. He was declared hostile. P.W. 6, Naresh Lugun, has stated that on hearing the alarm raised by the wife of the deceased, he went to the place of occurrence and saw Laksho Lugun injured and blood oozing out of his neck. He stated that Laksho Lugun told him that his brotner Govind Lugun assaulted him with an axe. The deceased wife Sukwari Lugun also told him that Govind Lugun had assaulted her husband. He stated that Laksho Lugun told him that his brotner Govind Lugun assaulted him with an axe. The deceased wife Sukwari Lugun also told him that Govind Lugun had assaulted her husband. P.W. 7, Jiwan Lugun and P.W. 8, Soma Lugun stated that they had gone to the Laksho Lugun to see him and they were told by Sukwari Lugun that Govind Lugun assaulted his husband with an axe. They saw Laksho Lugun injured with serious cut wound on neck. P.W. 9, Dr. Tulsi Mahto, conducted post mortem examination on the dead body of the Laksho Lugun. He has found incisec waund 6 cm X 2.5 cm X 5 cm on the left shoulder front adjoining the root of left side neck. He also found cut injury on the left first rib and upper lobe of left lung with presence of blood and blood clot in the left side of the chest cavity. According to him, the wound on the neck was ante mortem caused by heavy sharp cutting weapon such as an axe. The death was due to haemorrhage and shock. 7. Learned trial court, on appraisal of the said evidences on record, has relied on the evidence of P.W. 2 Sukwari lugun, who is an eye witness, the testimonies of P.W.-3, P.W.-4 and the evidence of doctor (P.W. 9) and held the appellant guilty for the charge under Section 302 I.P.C. and convicted him as aforesaid. 8. The appellant has assailed the impugned judgment mainly on the ground that there was a delay of about 15 days in lodging the F.I.R. and there was no proper explanation for the delay. The I.O. has not been examined by the prosecution which has caused serious prejudice to the appellant. There are contradictions in the evidences of prosecution witnesses. M/s Indu Parashar, appearing as Amicus Curiae submitted that even if the prosecution case is accepted at its face value, it is clear that there was a sudden quarrel between the two brothers Gobind Lugun and Laksho Lugun in a heat of passion and the appellant gave a blow of axe on the shoulder of Laksho Lugun. The intention was not to kill him. There was no repetition of blow. It is not a case of murder and the offence under Section 302 IPC is not constituted. The intention was not to kill him. There was no repetition of blow. It is not a case of murder and the offence under Section 302 IPC is not constituted. The case comes within the ambit of Exception (4) of Section 300 of the I.P.C punishable under Section 304 Part-I of the I.P.C. The appellant has remained in custody for more than ten years and has already suffered sufficient punishment. 9. Learned AP.P., on the other hand, supported the impugned judgment. It has been submitted that the prosecution has fully proved the fatal assault given by the appellant on the deceased. P.W. 2-the eye-witness and other prosecution witnesses have supported the prosecution case. The ocular testimony has been corroborated by the medical evidence of P.W. 9. Learned AP.P., however, fairly admitted that from the facts and circumstances of the case, it does not appear that the appellant had intention to commit murder of the deceased Laksho Lugun. The blow was not repeated. However, the blow was on vital part which caused the death of the deceased. " 10. After hearing learned Amicus Curiae and learned AP.P., we also scrutinized the evidences on record. We find from the evidence of P.W. 2 that she is an eye-witness and saw the appellant giving an axe blow on the shoulder of the deceased. P.W. 4 Birsa Lugun, although arrived at the place of occurrence later on, he saw Laksho Lugun lying on the ground and blood oozing out of his neck and shoulder. He saw Gobind Lugun fleeing away from the place. Laksho Lugun told him that his brother Gobind Lugun has injured him with an axe. P.W. 6 also went to the place of occurrence later on. He saw Laksho Lugun in injured condition and blood oozing out from his neck. He has stated that Laksho Lugun told him that his brother Gobind Lugun had assaulted him with an axe. The evidence of P.W. 2 - the eye-witness and the evidence of P.W. 5 and P.W. 6, to whom the deceased had told about the assault given by his brother Gobind Lugun is relevant and admissible evidence under Section 32 of the Evidence Act read with the medical evidence of P.W. g' go to establish that the accused-appellant inflicted severe axe blow on the vital part of the body of Laksho Lugun near the neck which ultimately caused his death. Learned court below has rightly held the appellant guilty of giving the said blow which caused homicidal death of the deceased. We, therefore, found no infirmity to .that extent of the finding of the learned court below. 11. However, we find substance in the submission of learned Amicus Curiae that even if the entire allegation of the prosecution is accepted as it is, it attracts Exception (4) of Section 300 I.P.C. From the evidences of the witnesses, it is manifest that there was sudden quarrel between two brothers• in the field and in the heat of passion, the accused appellant gave axe blow -on the shoulder of the deceased. The blow was not that grievous to cause death instantaneously. He did not repeat the blow. The deceased remained alive for about two weeks, thereafter, in course of treatment, he died on 21.10.1998. The said position is not disputed. We find that a single blow given by the appellant, on the shoulder of the deceased was not intended to take away the life of the deceased. He did not repeat blow and did not act in a cruel manner. 12. In view of the above, though, we find the accused-appellant guilty of committing homicidal death of the deceased by giving him an axe blow on his shoulder, in our considered view it does not amount to committing murder of the deceased. The case falls within the Exception (4) of Section 300 I.P.C. and the appellant is held guilty of committing an offence punishable under Section 304 Part-I of the I.P.C. 13. For the reasons aforesaid, we modify the conviction of the appellant and convert the same into the Section 304 Part-I of the I.P.C. 14. We are informed that the appellant has been in custody since 28.10.1998 i.e. for more than ten years, we modify the sentence of the appellant, reducing the same to the period undergone by him. 15. In the result: this appeal is dismissed but with the said modification in the impugned judgment and in 'conviction and sentence of the appellant. Since, the appellant is in custody, he is directed to be set at liberty forthwith, if not wanted in any other case.