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2015 DIGILAW 104 (JHR)

Bijay Tudu v. State of Jharkhand

2015-01-23

APARESH KUMAR SINGH, VIRENDER SINGH

body2015
Judgment Virender Singh, J. Appellant-Bijay Tudu (hereinafter to be referred as 'accused') after suffering conviction for the charge of Section 302 IPC and sentenced to life imprisonment for the said charge vide impugned judgment/order dated 29.3.2003/31.3.2003 has preferred the instant statutory appeal for setting aside of the impugned judgment. 2. At the very outset, it has been brought to our notice by Mr. Gautam Kumar, learned counsel for the accused, that the accused by now has already undergone few months less than 14 years, which statement is not controverted by the learned Additional Public Prosecutor, representing the State. 3. Mr. Kumar otherwise does not join the issue so far as merits of the present appeal is concerned and prays for diluting the conviction from Section 302 IPC to 304 Part-II IPC or at the most 304, Part-I IPC. 4. In order to strengthen his submission, learned counsel submitted that the prosecution case as originally set up and put forth during the trial is that Chhutar Marandi @ Ruyel Marandi, the deceased herein, along with his wife Smt.Sona Baskey (first informant) had gone to the house of his in-laws in connection with death of his mother-in-law and when wife of the deceased was occupied in religious function(Shradh) at her mother's house and the deceased was incidentally out of the house, the deceased saw that the accused and his wife Smt. Fulmani Murmu were fighting with each other when the deceased intervened between them and at that point of time the accused who was allegedly armed with Hasua (a sharp cutting weapon) gave one injury to deceased, which landed on his neck. The occurrence was witnessed by one Deo Nath Baskey aged 12/13 years, who informed Smt. Sona Baskey of the occurrence who ultimately reported the matter to the police. 5. Learned counsel submitted that from entirety of the facts, as projected by the prosecution, it is a case which would not fall within the mischief of Section 302 IPC at least, therefore, the conviction for the said charge as already recorded by the learned trial court deserves to be diluted. 6. Learned counsel further submitted that in the event of the conviction being diluted, as prayed for, the sentence which turns out to be more than 13 years already served by the accused till date, would serve the ends of justice. He thus prays for reduction of the sentence also accordingly. 6. Learned counsel further submitted that in the event of the conviction being diluted, as prayed for, the sentence which turns out to be more than 13 years already served by the accused till date, would serve the ends of justice. He thus prays for reduction of the sentence also accordingly. 7. In support of his arguments, learned counsel has relied upon the judgment of the Hon'ble Supreme Court rendered in the case of Ramesh Kumar @ Toni versus State of Haryana reported in AIR 2009 Supreme Court 2447 in which almost in similar set of circumstances, conviction recorded under section 302 IPC was ultimately diluted to one punishable under section 304, Part-I IPC. In that case also, accused had caused single injury on the neck (vital part) of the deceased. 8. Learned Additional Public Prosecutor, however, has opposed the arguments advanced by Mr. Gautam Kumar, stating that the case of the accused in the present set of circumstances does not fall in any of exception of Section 300 IPC as the accused was armed with a lethal weapon (Hasua) and chose a vital portion of the body of the deceased. He thus prays that the appeal deserves to be dismissed on all the counts. 9. Although, the learned counsel for the appellant has not joined issue vis-a-vis merits of the case, yet we have re-scanned the entire prosecution evidence for our satisfaction, being the first Court of Appeal, for the reason that the instant appeal already stands admitted and call for re-appreciation of the entire prosecution case once again. 10. The case of the prosecution hinges on the statement of a child witness PW-3 Deo Nath Baskey, who is related to the deceased as well as the accused. Deceased is his father's sister's husband (in common parlance Fufa) and the accused is his maternal grand father (in common parlance Nana). He is one, who was passing by the side of the place of occurrence when noticed that the accused was fighting with his wife-Smt. Fulmani Murmu. At that time, the deceased also reached there instantly and intervened. The statement on oath is that the accused who was armed with Hasua caused one injury on the neck of the deceased. He is one, who was passing by the side of the place of occurrence when noticed that the accused was fighting with his wife-Smt. Fulmani Murmu. At that time, the deceased also reached there instantly and intervened. The statement on oath is that the accused who was armed with Hasua caused one injury on the neck of the deceased. Whatever he had seen at the time of occurrence was conveyed to the wife of the deceased immediately, who was occupied in her house with regard to the religious affairs in connection with the death of her mother. All these facts, we also find in the initial statement lodged at the instance of the wife of the deceased. 11. We are conscious of the fact that the wife of the deceased, the first informant herein, has not stepped in the witness box to support the case of the prosecution, but that aspect would not dent the evidence of the solitary child witness who appears to be most trustworthy. He had no axe to grind against either side. We are also conscious of the fact that certain procedural irregularities have been committed by the learned trial court while examining this star witness, but those irregularities would also not damage the case of the prosecution while appreciating the evidence of this witness who has stood the test of credibility to unfold the prosecution case. We thus believe this solitary star witness holding the accused guilty of murder of Chhutar Marandi @ Ruyel Marandi. To that extent, we do not disturb the impugned judgment on merits. 12. We, however, are in agreement with the submissions of the learned counsel for the appellant for diluting the offence. 13. While dealing with the various clauses of Sections 299 and 300 of the Indian Penal Code, the Hon'ble Supreme Court in the case of Raj Pal and ors. Vs. State of Haryana, reported in (2006) 9 S.C.C. 678 , in paragraphs 15, 16,19 and 22 held as under: “15. The academic distinction between “murder” and “culpable homicide not amounting to murder” has always vexed the courts. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The academic distinction between “murder” and “culpable homicide not amounting to murder” has always vexed the courts. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences: Section 299 A person commits culpable homicide if the act by which the death is caused is done- Section 300 Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done- Intention (a) with the intention of causing death; or (1) with the intention of causing death; or (b) with the intention of causing such bodily injury as is likely to cause death; or (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or (3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or Knowledge (c) with the knowledge that the act is likely to cause death (4) with the knowledge that the act is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as is mentioned above. 16. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the “intention to cause death” is not an essential requirement of clause (2). It is noteworthy that the “intention to cause death” is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender’s knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by Illustration (b) appended to Section 300. xxxxxx 19. In Virsa Singh v. State of Punjab Vivian Bose, J. speaking for the Court, explained the meaning and scope of clause (3). It was observed that the prosecution must prove the following facts before it can bring a case under Section 300 “thirdly”. First, it must establish quite objectively, that a bodily injury is present; secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly, it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.” xxxxxx “22. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh case for the applicability of clause “thirdly” is now ingrained in our legal system and has become part of the rule of law. Under clause thirdly of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death viz. that the injury found to be present was the injury that was intended to be inflicted”. 14. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death viz. that the injury found to be present was the injury that was intended to be inflicted”. 14. Their Lordships ultimately held in paragraph-25 as under : “25. The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate and clear-cut treatment to the matters involved in the second and third stages”. 15. While applying the ratio of the judgment rendered in Raj Pal (Supra) and Ramesh Kumar @ Toni (Supra) on the facts of the present case, in our considered view, the conviction of the accused under Section 302 IPC as recorded by the learned trial court deserves to be disturbed, by diluting it to the offence punishable under Section 304, Part-I of the Indian Penal Code. Ordered accordingly. We also reduce the sentence of life imprisonment to the period already undergone by him, which admittedly turns out to be around 14 years. 16. The net result is that the appeal on hand stands partly allowed in the aforesaid terms. 17. Person of the accused appellant -Bijay Tudu son of late Gyan Tudu of village Bagha Pathar, PS Dumka Muffasil, District- Dumka shall be released forthwith in this case, if he is not required in any other case. 18. The release order in this regard shall be sent forthwith to the concerned authority(s). 19. Registry to notify the outcome of the present appeal to the learned trial court also without any delay, for its compliance. Appeal partly allow.