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2014 DIGILAW 936 (JHR)

Mungru Kerai v. State of Jharkhand

2014-09-04

AMITAV K.GUPTA, R.R.PRASAD

body2014
Judgment Amitav K. Gupta, J. The present appeal is directed against the judgment of conviction and order of sentence dated 13.09.1996 and 16.09.1996 respectively, passed in Sessions Trial No.166/1994, by 4th Addl. Sessions Judge, Singhbhum West at Chaibasa whereby the appellant has been convicted for the offence under Section 302 of the Indian Penal Code (for short I.P.C) and sentenced to undergo imprisonment for life. 2. The prosecution case is based on the fardbeyan of Sutri Kui, wife of the deceased-Kurpu Kerai, wherein it is narrated that on 01.03.1994 at about 5.30 P.M. her husband(deceased) was returning home after grazing buffaloes and at that time Mangru Kerai armed with a wooden plank of the cot(Khatia ka patti) confronted her husband in the field of Ghasia Angaria which is situated 100 yards from the house of the informant. It is alleged that Mangru Kerai told her husband that he will take his revenge as her husband had assaulted him earlier and also threatened to kill him; that her husband tried to pacify the accused whereupon Mangru Kerai gave a blow on the head with the wooden plank due to which her husband fell down and died; that on her alarm Rautu Angaria and Jema Kui witnesses to the occurrence, came there whereafter they informed the Mukhiya and Munda about the occurrence who sent the information to the police. It is stated that since there was quarrel between her husband and the accused earlier the accused-Mungru Kerai had killed her husband. On the basis of the fardbeyan dated 02.03.1994, Goelkera P.S. Case NO.07/1994 was registered and after completion of investigation the police submitted charge-sheet whereupon cognizance was taken and the case was committed to the court of sessions. The appellant-accused pleaded not guilty to the charges and faced the trial. 3. It appears that prosecution has examined altogether five witnesses, namely, P.W.1-Dr. Mathura Prasad Singh who held autopsy on the dead body of the deceased and the post report is marked as Ext.1; P.W.2-Sutri Kui is the informant and wife of the deceased; P.W.3-Jema Kui; P.W.4-Rautu Angaria and P.W.5 is Rana Ram Badan Singh who has proved fardbeyan(Ext.2); formal F.I.R(Ext.3) and the inquest report(Ext.4). On the closure of the prosecution evidence the statement of the accused was recorded under Section 313 Cr.P.C. and the defence is of complete denial. Considering the evidence on record learned 4th Addl. On the closure of the prosecution evidence the statement of the accused was recorded under Section 313 Cr.P.C. and the defence is of complete denial. Considering the evidence on record learned 4th Addl. Sessions Judge, West Singhbhum at Chaibasa convicted the appellant by the impugned judgment. 4. Learned counsel for the appellant has assailed the impugned judgment inter alia on the ground that the fardbeyan has not been proved as the informant-P.W.2 has testified that she had narrated the occurrence in 'Ho' language (local dialect) and the Mukhiya had translated the same in Hindi which was recorded by the Daroga but the said Mukhiya has not been examined to explain the fact that he had translated the narration in Hindi to the Daroga; that the informant-P.W.2 in her fardbeyan has stated that the occurrence took place at a distance of 100 yards from her house and she has deposed that four-five blows were given by the appellant which is not corroborated by the medical evidence wherein the Doctor (P.W.1) found only one injury on the deceased and this is indicative of the fact that she is not an eye witness. That in her cross-examination she has stated that the accused is the own brother of her husband which shows that she has falsely implicated the appellant in order to grab the property; that P.W.3 is related to the informant as P.W.3 has admitted that the informant calls her 'Chachi' and she has stated that her house is at a distance of 100 yards from the house of the informant; that P.W.4 has stated that the informant and P.W.3 took hadia (country liquor) and thereafter they had gone out and raised a hulla which contradicts the testimony of P.Ws.2 and 3 as P.W.3 has not stated that P.W.2 was having hadia(country liquor) with her. It is also contended that no independent eye witnesses have been examined and the trial court failed to appreciate that P.Ws.2, 3 and 4 are highly interested witnesses and there is material contradiction in their testimony, thus the impugned judgment is fit to be set aside. 5. It is also contended that no independent eye witnesses have been examined and the trial court failed to appreciate that P.Ws.2, 3 and 4 are highly interested witnesses and there is material contradiction in their testimony, thus the impugned judgment is fit to be set aside. 5. Controverting the submission of the learned counsel for the appellant it has been argued by the learned counsel for the State that P.W.2 has supported her statement as made in the fardbeyan and P.W.3 and P.W.4 have also supported the testimony of P.W.2; that the medical evidence corroborates that the deceased died on account of assault on the head; that the doctor had opined that the injury was sufficient in ordinary course of nature to cause death and the trial court has rightly held that the appellant had intentionally assaulted the deceased on the head and the offence is covered under Clause thirdly of Section 300 I.P.C. It is urged that the appellant has rightly been convicted for the offence of culpable homicide amounting to murder as defined under Section 300 I.P.C. and the appeal is fit to be dismissed. 6. In the light of the submissions advanced by the parties it is relevant to reproduce the findings of P.W.1 i.e. Dr. Mathura Prasad Singh who conducted post-mortem and found the following ante mortem injuries on the body of the deceased;- “i) One bruise 1”x3/4”x on the right upper part of forehead. ii) One haematoma 1& 1/2”x 1 &1/4” on the left side of head behind left ear. Bleeding was present from left ear and nostril.” On dissection the doctor found that left parietal bone was fractured, subdural haemotoma on the left side of brain was present. The brain matter was congested. The ribs were intact, lungs were congested, heart was full of blood. In the opinion of the doctor the deceased died due to head injury and haemorrhage and shock and found that injury was caused by hard and blunt substance which was sufficient to cause death in ordinary course of nature. Thus, from the medical evidence it is evident that the deceased met a homicidal death. 7. In the opinion of the doctor the deceased died due to head injury and haemorrhage and shock and found that injury was caused by hard and blunt substance which was sufficient to cause death in ordinary course of nature. Thus, from the medical evidence it is evident that the deceased met a homicidal death. 7. P.W.2-informant has testified that she was near her house and she saw the appellant-accused assaulting her husband with the wooden leg of the cot on the right temple and head; that she raised alarm upon which P.W.3 and P.W.4 came there and she also informed the Munda and Mukhiya. Likewise P.W.3 has stated that it was a day of Maghe festival and she was going to take hadia(country liquor) and on the way she saw the appellant assaulting the deceased with the wooden leg of the cot due to which he died and she had seen the injury on the head of the deceased; that the occurrence had taken place in front of the house of the deceased; that P.W.4 has testified that P.W.2 and P.W.3 had haria at his house and when they were going they raised hulla and he went to the field of Ghasia Angaria where he saw the appellant fleeing away; that they had informed the Munda and Mukhiya. 8. The contention of the learned counsel for the appellant that the Mukhiya has not been examined to prove the fact that he had translated the statement of P.W.2 given in Ho dialect into Hindi to the police is not acceptable because P.W.2 has categorically stated that she had gone to the Mukhiya who had informed the police and the police had come on the next day and had recorded her statement on translation by the Mukhiya which is also corroborated by the Investigating Officer who has stated that Murgi Angaria had translated the statement of the informant from Ho Bhasa into Hindi and he had recorded the statement whereafter the same was explained to the informant and Murgi Angaria signed as a witness and this fact is proved by the endorsement of the signature of Murgi Angaria in the fardbeyan which has been marked as Ext.2. 9. 9. The contention of the learned counsel for the appellant that the informant is not an eye witness to the occurrence as she testified that the appellant had assaulted four/five times but in the medical evidence only one injury was found is also not acceptable because it is the tendency of a witness to exaggerate or make embellishment in the deposition and she is a rustic lady and she had witnessed the occurrence from a distance. Moreover, she has withstood the test of cross-examination and nothing has been elicited to dent her evidence on the point of assault. P.W.3 in paragraph 5 of the cross-examination has specifically stated that there is no inhabitation or house in between the house of P.W.3 and P.W.2; that in fact P.W.3 in her cross-examination has stated that while she was on the way to the house of P.W.2 she saw the occurrence; that on alarm being raised no one came there. P.W.2 has testified that due to alarm P.Ws.3 and 4 had come to the place of occurrence and testimony of P.Ws.3 and 4 is consistent to the evidence of P.W.2 and in fact P.Ws 3 and 4 are not interested witnesses but natural witnesses who had come to the place of occurrence on the alarm raised by P.W.2. 10. Learned counsel for the appellant has contended that the appellant has been falsely implicated with an intent to grab the property as the appellant is the own brother of the deceased. This contention of the learned counsel is also not acceptable because in cross-examination P.W.2 has categorically stated that there was no quarrel or fight between her deceased-husband and the appellant and they reside separately. Thus, from the evidence on record it is apparently clear that the testimony of P.W.2-informant has not been shaken in cross-examination. Though she has stated about the assault by the appellant five or six times which is not corroborated by the medical evidence but such infirmity does not destroy or impinge the credibility of the testimony of P.W.2. 11. From the medical evidence, as noted above, it is apparent that the deceased died on account of single blow. Admittedly, the appellant had assaulted with the wooden plank of the cot. 11. From the medical evidence, as noted above, it is apparent that the deceased died on account of single blow. Admittedly, the appellant had assaulted with the wooden plank of the cot. It is also noticed that there was no repetition of blows and neither did the appellant-accused act in a cruel manner and there is no material to show that the appellant has criminal history or there was previous enmity between the appellant and the deceased. In this connection it would be relevant to refer to the decision in the case of Hemraj Vs. State(Delhi Admn.), reported in 1990 SCC(Criminal 713); 1990 (Supp.) SCC 291 wherein in paragraph 14 it has been held :- “the question is whether the appellant would be said to have caused that particular injury with the intention of causing death of the deceased. As the totality of the established facts and circumstances do show that the occurrence had happened most unexpectedly in a sudden quarrel and without premeditation during the course of which the appellant caused solitary injury, he could not be imputed with the intention to cause death of the deceased or with the intention to cause that particular fatal injury, but he could be imputed with the knowledge that he was likely to cause an injury which was likely to cause death. Because in the absence of any positive proof that the appellant caused the death of the deceased with the intention of causing death or intentionally inflicted that particular injury which in the ordinary course of nature was sufficient to cause death, neither Clause I nor Clause III of Section 300 IPC will be attracted.” 12. In the aforementioned case the doctor had opined that the injury was sufficient in ordinary course of nature to cause death but after considering the fact of the case, the Supreme Court modified the conviction under Section 302 I.P.C and the accused was convicted for the offence under Section 304 Part II I.P.C and was sentenced to undergo R.I. for 7 years. 13. In the case of Gurumukh Singh Vs. State of Haryana, reported in (2009) 15 SCC 635 , where the death was as result of single blow, the Hon'ble Supreme Court in para 23 has enumerated the factors required for consideration while passing appropriate sentence. These factors were also considered and appreciated in the case of Chenda @ Chanda Ram Vs. In the case of Gurumukh Singh Vs. State of Haryana, reported in (2009) 15 SCC 635 , where the death was as result of single blow, the Hon'ble Supreme Court in para 23 has enumerated the factors required for consideration while passing appropriate sentence. These factors were also considered and appreciated in the case of Chenda @ Chanda Ram Vs. State of Chhatisgarh, reported in (2013) 12 SCC 110 wherein the Apex Court discussed the provisions of Section 299 and Clause thirdly of Section 300 I.P.C. and also took note of the applicability of Exception 4 to Section 300 I.P.C and after taking note of the injuries on the deceased mentioned in para 14 of the said judgment, as hereunder:- “1. Cut wound on the head of size 4 inches x 3 inches bone deep. 2. Floated swelling on head and nose and on both the eyes. 3. There was fracture in skull on both sides of cuttlebone, in bell up skull and also in the bone of nose. 4. Fractures were also found in the left parietal and occipital bones of the skull, there were total five fractures in the skull 5. The doctor in the said case opined that such injury can be caused by one blow with the weapon of offence and that the injury was sufficient in the ordinary course of nature to cause death”. 14. In the aforementioned case the Apex Court having considered the fact that appellant had given only one blow and the occurrence took place on the spur of moment without any pre-mediation and there was no adverse criminal history or any act of cruelty against the appellant, therefore, keeping in view the conduct of the appellant, the Supreme Court altered the punishment from under Section 302 to 304 Part II of the I.P.C. 15. In the present case, as noted above, the appellant had given a single blow and such an act, in the established facts and circumstances, does not establish that there was any pre-meditation or pre-conceived design to cause death of the deceased. In the given circumstances the appellant cannot be imputed with the intention to cause the death of the deceased, however, he cannot be absolved from having the knowledge that the injury was likely to cause death. In the given circumstances the appellant cannot be imputed with the intention to cause the death of the deceased, however, he cannot be absolved from having the knowledge that the injury was likely to cause death. There is no positive proof in the evidence of P.Ws.2, 3 and 4 that the appellant caused the death of the deceased with the intention of causing death. The appellant was not armed with any deadly weapon neither there was any repetition of blows. There is no material to show that he had a criminal history or any prior enmity with the deceased or he acted in a cruel manner in course of the assault. Thus, in the totality of the circumstances and taking into account the ratio of the aforementioned decisions, we hold that the offence committed by the appellant amounts to culpable homicide not amounting to murder punishable under Section 304 Part II I.P.C. 16. Accordingly, we set aside the conviction of the appellant under Section 302 I.P.C. and alter the conviction for the offence under Section 304 Part II I.P.C. and sentence him for the period undergone since he has remained in custody for more than a decade. The appellant, named above, is hereby directed to be released forthwith from custody, if not wanted in any other case. 17. Accordingly, this appeal is disposed of with the modification in the order of conviction and sentence to the extent noted above. Application disposed of with modification.