Research › Search › Judgment

Jharkhand High Court · body

2012 DIGILAW 227 (JHR)

Dhanbir Munda v. State of Jharkhand

2012-02-14

D.N.UPADHYAY, R.K.MERATHIA

body2012
ORDER This appeal is directed against the Judgment of conviction and order of sentence dated 19.09.2002 and 21.09.2002 respectively, passed by the Sessions Judge, Gumla in Sessions Trial No. 115/2001 convicting the appellant under Section 302 of the Indian Penal Code and sentencing him to undergo life imprisonment. 2. The prosecution case in short is that Tijo Mundain [P.W.-3], sister of the deceased Nuni Mundain gave her fardbayan on 10.09.2000 at 5:00 p.m. at village Salami to the effect that Nuni Mundain was married with the appellant three years ago. On 07.09.2000, Nuni Mundain came from Sasural for celebrating Karma festival. On 09.09.2000, the appellant came between 7 to 8 p.m. in the house when her sister Nuni Mundain was alone with her small child. Tijo Mundain (P.W.-3) heard cry of Nuni Mundain when she was outside her house at the door. She entered into the house and saw that appellant was fleeing away from the house having Dabia Knife in the right hand. When she tried to stop him then he gave a push to her and fled away towards East. Her sister was crying in the room and when she went near, she saw that the left hand was cut and separated near the wrist and left leg was also cut above the fily and the foot of right leg was also cut and she was crying in pain. She told the informant that the appellant assaulted her with knife and cut her hand and leg. The informant further stated that Nuni Mundain was alive for some time and she was in speaking condition and, thereafter, she became unconscious and died. 3. Mr. Zaid Ahmad, learned counsel for the appellant assailed the impugned judgment on various grounds. He submitted that nobody has seen assault on the deceased. The injuries were not on the vital parts of the body and, therefore, it could not be said that there was intention to kill the deceased. Further had she been given proper treatment, she could have survived. There are contradictions and variations in the evidence of the witnesses. When the appellant was examined under Section 313 Cr.P.C., he took the plea of alibi. Further had she been given proper treatment, she could have survived. There are contradictions and variations in the evidence of the witnesses. When the appellant was examined under Section 313 Cr.P.C., he took the plea of alibi. He also submitted that the defence had given suggestion to P.W.-3 that the two Oraon boys who had gone to bring Nuni Mundain from her Sasural might have killed her due to intimate relations and quarrel between them and the deceased. Therefore, he submitted that the prosecution has not been able to prove the case against the appellant beyond all reasonable doubts. 4. On the other hand, Mr. Amaresh Kumar, learned counsel for the State supported the impugned Judgment. 5. The prosecution has examined eight witnesses. P.Ws.-1 and 2 are the inquest witnesses; P.W.-3 is the informant; P.W.-4 is the Doctor; P.Ws.-5, 6 and 7 are the villagers; P.W.-8 is the Investigating Officer. 6. The Doctor found four incised injuries caused by sharp cutting injuries on the deceased. Her left fore arm was amputated from the mid point. The other incised wound 6” x 4” bone deep was present over the anterior surface of the left lower leg extending from lower part of the leg up to the sole. The other incised wounds were present over left elbow and doresom of right foot. In his opinion, death was due to shock and haemorrhage and the injuries were caused by sharp cutting heavy substance. Injury nos. 1 and 2 were grievous and injury nos. 3 and 4 were simple in nature. 7. P.W.-3 fully supported the case as narrated in the F.I.R. that when she was standing outside her house, she heard cry of the deceased; she rushed inside the house; she saw the appellant fleeing away with Dabia [sharp cutting weapon]; then she found her sister in a pool of blood with sharp cut injuries on her hands and legs; the deceased told her that the appellant caused injuries on her; several persons assembled at the place of occurrence on her hulla; the Police seized blood stained soil and cloth; she denied the suggestion that the two boys who went to bring the deceased from Sasural, had intimate relation with the deceased and due to scuffle between them, they might have caused the incident. 8. 8. P.W.-6 said that the deceased told him that the appellant inflicted the said injuries on her but in the cross examination, he said that he did not have any talk with the deceased; and she was unconscious. But only on such statement, the prosecution case can not be disbelieved. 9. P.W.-7 said in his examination-in-chief and in the cross examination that the deceased told before all the persons that the appellant had inflicted the said injuries on her. 10. P.W.-8 – Investigating Officer, interalia said that he recorded the statement of P.Ws.-6 and 7 under Section 161 Cr.P.C. On verification from the Case Diary, it appears that the statements of P.Ws.-5, 6 and 7 were recorded by the Police. It appears that there is some confusion in the statement of P.Ws.-5 and 7 when they said that the Police did not record their statement, as the same is found in the Case Diary. 11. The appellant took plea of alibi in his statement under Section 313 Cr.P.C. but nothing has been brought on record to support it. 12. Mr. Zaid Ahmad, learned counsel for the appellant lastly submitted that at best the appellant can be convicted for the offence under Section 326 or Section 304 of the Indian Penal Code. He referred the case of State of Punjab Vs. Balkar Singh and others reported in 1998 SCC (Cri.) 399. 13. We feel inclined to accept this submission. The Doctor has not said that the said injuries were sufficient to cause death in ordinary course of nature. There is nothing to show that any effort to treat the deceased was made. The informant said that she died after 1 ½ hours whereas, P.W.-5 said that she died at 4:00 in the morning/evening. It also appears that had there been intention to kill the deceased, the appellant could have inflicted injuries on the vital part of her body, but the injuries inflicted are on hands and legs, out of which two were grievous and two were minor. It further appears that the death was result of hemorrhage due to cut of vains. In the facts and circumstances of this case, we are inclined to convert the conviction of the appellant from Section 302 to Section 304 of the Indian Penal Code. 14. So far as the sentences is concerned, Mr. It further appears that the death was result of hemorrhage due to cut of vains. In the facts and circumstances of this case, we are inclined to convert the conviction of the appellant from Section 302 to Section 304 of the Indian Penal Code. 14. So far as the sentences is concerned, Mr. Zaid Ahmad informed that the appellant has already remained in custody for more than 11 years by now. Accordingly he is sentenced to the period already undergone by him. 15. In the result, this appeal is partly allowed as indicated above. The appellant be released forthwith, if not wanted in any other case.