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2011 DIGILAW 1020 (JHR)

Neha Murmu @ Leha Murmu v. State of Jharkhand

2011-11-22

D.N.UPADHYAY, R.K.MERATHIA

body2011
JUDGMENT : By Court- This appeal arises out of judgment and order of conviction and sentence dated 31.7.2001 passed by Sri Binay Kumar Sinha, Additional Sessions Judge, Pakur, in Sessions Trial No. 32 of 1999/9 of 1999 whereby the appellant has been convicted under Sections 302/323 of the Indian Penal Code and accordingly sentenced to undergo imprisonment for life under Section 302 IPC and rigorous imprisonment for six months under Section 323 of the Indian Penal Code. 2 Prosecution case, in short, as emerges from the farebeat lodged by the informant Buddhinath Murmu (PW-8) on 6.8.1998 is that on the previous day (5.8.1998) at about 2.00 p.m. his father Dipti Murmu (deceased) went to the field for ploughing it in the meantime, the appellant and his son Srijal Murmu came there with lathi in their hands and asked him as to why he (the deceased) was ploughing the field. The informant (PW-8) told that the field was given to them by Mangal Marandi on sharing basis. On this the accused-appellant started assaulting the informant and when he escaped from there, they started assaulting his father (deceased) due to which he sustained grievous injuries. Thereafter, the accused fled away. The occurrence was seen by PWs-2, 4, 5 and 7 apart from the. informant (PW-8). It is further alleged that the PWs tried to rescue the deceased, but due to fear they could not intervene as the accused appellant had bow and arrow. The deceased died at the spot. 3. On the basis of the said farebeat of the informant Maheshpur PS Case No. 68 of 1998 was registered. After investigation, charge-sheet was submitted against the appellant and he faced the trial and was convicted as aforesaid. 4. Learned counsel appearing on behalf of the appellant, submitted that at best, the appellant could be convicted under Section 304 (part-II) IPC and not under Section 302 of the Indian Penal Code, as the prosecution has not brought on record anything to show that the appellant had intention to kill the deceased and that the 'appellant has remained in jail for about 13 years. 5. On the other hand, learned counsel appearing on behalf of the State supported the impugned judgment. 6. 5. On the other hand, learned counsel appearing on behalf of the State supported the impugned judgment. 6. After hearing the learned counsel for the parties at length and going through the materials available on the record, we find force in the submission of the learned counsel that the appellant could have been convicted under Section 304 (part-II) of the Indian Penal Code, and not under Section 302 IPC. 7. The Dr. Ram Jeevan Pd. Sah (PW-3) found (i) one abrasion on the shoulder, (ii) a swelling and a fracture of the bone of the left arm in the middle, (iii) a swelling with fracture of both radius and ulna of left fore-arm on the lower portion and (iv) a fracture of the left 7th rib. He found the spleen ruptured. In his opinion, the death was due to shock and hemorrhage resulting from the rupture of spleen caused by hard and blunt substance, such as lathi. 8. It appears that Injuries No. (i) and (ii) and (iii) were not on vital part of the body. However injury no. (iv) was on the vital part of the body which caused fracture of 7th rib, which might have caused rupture of the spleen, which, according to the doctor (PW-3), was the cause of death of the deceased. 9. Admittedly, the occurrence took place over the dispute with regard to the ploughing of the field. The prosecution has not brought anything on record to show that the appellant had intention to kill the deceased. Rather, the materials available on the record shows that the appellant had gone to restrain the deceased from ploughing the field over which he was making his claim and the objection raised by the accused appears to be the cause of quarrel between the parties, which resulted in provocation followed by the alleged incident. 10. Considering the aforesaid facts and circumstances of the case, the conviction of the appellant under Section 302 of the Indian Penal Code is converted under Section 304 (part-II) of the Indian Penal Code. So far as the sentence is concerned, it is informed that he has remained in jail for more than ten years. Accordingly, the appellant is sentenced to imprisonment for ten years which he has already undergone. 11. So far as the sentence is concerned, it is informed that he has remained in jail for more than ten years. Accordingly, the appellant is sentenced to imprisonment for ten years which he has already undergone. 11. For the reasons assigned in the judgment, this appeal is partly allowed with the modification in the order of conviction and sentence of the appellant passed by the trial court in Sessions Trial No. 32 of 1999/9 of 1999. Accordingly, the appellant is convicted under Section 304 (part-II) of the Indian Penal Code and sentenced to imprisonment for ten years, which he has already undergone. The appellant is in custody. He is directed to be released forthwith, if not wanted in any other case.