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2016 DIGILAW 301 (JHR)

Mangal Khalko v. State of Jharkhand

2016-02-09

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : 1. This criminal appeal has been directed against the judgment of conviction and order of sentence dated 29th October, 2004 passed by learned Additional Judicial Commissioner, Fast Track Court No. VII, Ranchi in connection with Session Trial Case No.301 of 1996, corresponding to G.R. No. 300 of 1995, arising out of Ratu P.S. Case No.154 of 1995, whereby the appellant has been held guilty for the offence punishable under Section 302 IPC and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.2,000/- and in default of making payment of fine, further rigorous imprisonment of two months. 2. The prosecution case, as it appears from the Fardbeyan of Bhogta Oraon, recorded on 11th November, 1995, at 17:00 hours, in brief, is that he was informed by Gangi Orain that Mangal Khalkho has killed Mangu Oraon by causing injury to him by means of Tangi in his house. The informant happens to be brother of the deceased-Mangu Oraon. After receiving such information, he rushed to the house of appellant-Mangal Khalkho and found dead body of Mangu Oraon, lying on the outer veranda of the house. He had noticed multiple cut injury on the person of the deceased. At the spot, wife of the informant was also present and she also repeated the same fact before him. The reason behind the occurrence has been assigned that the deceased was having illicit relation with Lalita Devi-wife of the appellant. On the basis of Fardbeyan of Bhogta Oraon, Ratu P.S. Case No.154 of 1995 dated 11th November, 1995 under Section 302 of the Indian Penal Code was registered. 3. The investigation was carried out and the appellant was charge-sheeted. Accordingly, cognizance was taken and the case was committed to the Court of Sessions and registered as Session Trial Case No.301 of 1996. Charge under Section 302 IPC was framed on 11th March, 1999 against appellant-Mangal Khalkho and he was put on trial. The prosecution in order to substantiate the charge has examined altogether nine witnesses. Learned Additional Judicial Commissioner, at the conclusion of trial, held the appellant guilty under Section 302 of the Indian Penal Code and sentenced him, as indicated above. 4. Learned counsel appearing for the appellant has submitted that the learned Additional Judicial Commissioner has wrongly held the appellant guilty for the offence punishable under Section 302 of the Indian Penal Code. Learned Additional Judicial Commissioner, at the conclusion of trial, held the appellant guilty under Section 302 of the Indian Penal Code and sentenced him, as indicated above. 4. Learned counsel appearing for the appellant has submitted that the learned Additional Judicial Commissioner has wrongly held the appellant guilty for the offence punishable under Section 302 of the Indian Penal Code. Admitted facts appearing in the Fardbeyan is that the deceased was having illicit relation with Lalita Devi (wife of the appellant) and the occurrence took place in the house of appellant. The informant has further disclosed that the appellant might have seen the deceased in his house with his wife and that might be the reason behind murder. Had it been so and if the statement of witnesses is accepted to be true, the appellant shall be liable to be punished under Section 304, Part-I, of the Indian Penal Code. It is submitted that place of occurrence is the house of appellant, illicit relation of the deceased with wife of the appellant was admitted and, therefore, the presence of the deceased in his house caused annoyance to him and under that provocation injuries were caused to the deceased. The offence committed by the appellant, if admitted to be true, it would come under Exception 1 of Section 300 of the Indian Penal Code, which reads as under:- “Exception 1-When culpable homicide is not murder-Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.” 5. Learned counsel appearing for the appellant further placed reliance on the judgments of the Hon'ble Supreme Court, reported in (2011)2 SCC 123 [Mangesh Vs. State of Maharashtra]; (2011)14 SCC 678 [State of Punjab Vs. Jagtar Singh & Ors.]; and (2014)4 SCC SCC 802 [Saroj @ Suraj Panchal & Anr. Vs. State of West Bengal] and submitted that the case of the appellant is squarely covered by the judgments cited above. 6. Learned A.P.P. appearing for the State has opposed the argument and submitted that the facts appearing in the case at hand are quite distinguishable and the murder committed by the appellant does not come within the purview of Exception 1 of Section 300 of the Indian Penal Code. 6. Learned A.P.P. appearing for the State has opposed the argument and submitted that the facts appearing in the case at hand are quite distinguishable and the murder committed by the appellant does not come within the purview of Exception 1 of Section 300 of the Indian Penal Code. No evidence has been brought on record to suggest that the appellant lost his control and inflicted Tangi blows under grave provocation caused by the deceased. The assault was caused to the deceased on the outer veranda of the house of the appellant and it was noticed by P.Ws.3 and 5, who are eye-witnesses to the occurrence. Bloodstained Tangi was also recovered from the place of occurrence. The prosecution has proved the Fardbeyan, inquest report, seizure list and postmortem report. The Trial Judge has rightly held the appellant guilty for the offence punishable under Section 302 of the Indian Penal Code. The conviction and sentence recorded by Trial Judge need no interference. 7. We have considered the rival submissions, perused the case record, evidences and documents available on record, impugned judgment of conviction and order of sentence and we have also gone through the judgments, relied upon by the appellant. From the evidence of informant, it reveals that illicit relation of his brother-Mangu with wife of the appellant might be the reason of his murder. It is expressed in the Fardbeyan that the deceased with the wife of the appellant might have been seen by the appellant and that might be the reason for his murder. We have gone through the evidence of eye-witnesses, P.Ws.3 and 5. They did not say that wife of the appellant was present in the house. Neither the prosecution nor the defence has brought evidence on record to show that the deceased was seen in the house with wife of the appellant. The appellant did not admit in his statement recorded under Section 313 Cr.P.C. that he had killed the deceased under grave and sudden provocation after he had seen the deceased with his wife in his house. He has simply denied the allegation levelled against him. The appellant did not admit in his statement recorded under Section 313 Cr.P.C. that he had killed the deceased under grave and sudden provocation after he had seen the deceased with his wife in his house. He has simply denied the allegation levelled against him. The motive behind murder might be the illicit relation prevailing between the wife of the appellant and the deceased, but then to bring the incident within the purview of Exception 1 of Section 300 of the Indian Penal Code we have to consider the circumstances indicated by the Hon'ble Supreme Court in a judgment, rendered in the case of Pulicherla Nagaraju Vs. State of A.P., reported in (2006)11 SCC 444 , which are as follows:- “(i) Nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows.” 8. In view of above guidelines, we have considered the facts appearing in the case at hand. In that perspective, we found that weapon used was a Tangi and it was not picked up from the spot. The blows by means of Tangi were inflicted on vital parts of the body like face and neck. The amount of force employed in causing injury was so grave that trachea and other vessels were found cut and the occurrence was not the result of any sudden quarrel or sudden fight. Since presence of the appellant's wife at the place and time of occurrence has not been brought on record, it could not be said that the incident occurred by chance. Since presence of the appellant's wife at the place and time of occurrence has not been brought on record, it could not be said that the incident occurred by chance. The deceased was not a stranger, rather he was known to the appellant and the appellant might be knowing about illicit relation prevailing between his wife and deceased. No evidence is available on record to show that the deceased was seen in objectionable condition with the wife of the appellant in his house and the facts and evidences available on record do not suggest that under any grave and sudden provocation the appellant has inflicted blows by means of Tangi. Since the prosecution evidence is silent about altercation or exchange of hot words, if took place, between the appellant and the deceased, it could not be said that it occurred in the heat of passion; the numbers of injuries caused on the person of the deceased suggest that the deceased was killed in a cruel manner because he had sustained as many as nine injuries caused by Tangi blows and it was not a case of single blow. Therefore, we do not agree with the submission that the occurrence comes within the purview of Exception 1 of Section 300 of the Indian Penal Code and the appellant is liable to be convicted under Section 304, Part-I, of the Indian Penal Code. 9. P.Ws.3 and 5 have clearly stated that the appellant had been giving repeated blows by means of Tangi to the deceased and the ocular statement finds support from postmortem report. Furthermore, according to the statement of Investigating Officer-P.W.9, the statement of Lalita Devi was recorded, but she did not come forward to depose during trial. The appellant did not admit that he has committed the offence under sudden and grave provocation caused by the deceased and under that state of mind he lost his control and caused injury to the deceased. 10. Considering all these aspects, we find that the facts appearing in the judgments, cited above by learned counsel for the appellant, are quite distinguishable. We do not find any merit in this appeal. Accordingly, this appeal stands dismissed. 10. Considering all these aspects, we find that the facts appearing in the judgments, cited above by learned counsel for the appellant, are quite distinguishable. We do not find any merit in this appeal. Accordingly, this appeal stands dismissed. The judgment of conviction and order of sentence dated 29th October, 2004 passed by learned Additional Judicial Commissioner, Fast Track Court No. VII, Ranchi in connection with Session Trial Case No.301 of 1996, corresponding to G.R. No. 300 of 1995, arising out of Ratu P.S. Case No.154 of 1995, is hereby upheld.