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2016 DIGILAW 331 (JHR)

Edmon Bilung v. State of Jharkhand

2016-02-12

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : 1. This Criminal Appeal has been directed against the judgment of conviction and order of sentence dated 21st July, 2006 passed by Additional Sessions Judge, Simdega in connection with Sessions Trial Case No. 115 of 2004 corresponding to G.R. Case No. 276 of 2004 arising out of Simdega P.S. Case No. 100 of 2004, whereby the appellant has been held guilty for the offence punishable under sections 302 Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 2. The prosecution case as it appears from the fard-beyan of Shanti Bilung, recorded on 5.9.2004 at 15:30 hrs. is that on 4.9.2004 informant with her husband Xavier Bilung was chatting by sitting in the house. In the mean time, Edmon Bilung younger brother of the deceased armed with a stick reached to the place and started abusing. The informant with her husband went to make a complaint to her father-in-law whose house was situated at the distance of 100 yards. While the informant with her husband was returning home, appellant Edmon Bilung appeared and assaulted his elder brother Xaviour Bilung causing injury on his head and hand and fled away. Xavier Bilung was brought home but, could not survive and died within two hrs. On the basis of fard-beyan of Smt. Shanti Bilung, Simdega P.S. Case No. 100 of 2004 dated 5.9.2004 u/s. 302 IPC against the appellant was registered. The police after due investigation submitted charge sheet and, accordingly, cognizance was taken and case was committed to the court of Sessions and registered as Sessions Trial No. 115 of 2004. 3. The charge under section 302 Indian Penal Code was framed against the appellant to which he pleaded not guilty and claimed to be tried. To substantiate the charge the prosecution has examined altogether eleven witnesses and proved inquest report, seizure list, fard-beyan, Post-Mortem report etc. The learned Additional Sessions Judge, Simdega placing reliance on the evidence and documents available on record, held the appellant guilty for the offence punishable u/s. 302 IPC and sentenced him as indicated above. 4. Learned counsel for the appellant has submitted that except PW-1 Shanti Bilung there is no eye witness to the occurrence and PW-1 happens to be the wife of deceased. PW-4, PW-6, PW-7 and PW-11 have not supported the prosecution case and they have turned hostile. 4. Learned counsel for the appellant has submitted that except PW-1 Shanti Bilung there is no eye witness to the occurrence and PW-1 happens to be the wife of deceased. PW-4, PW-6, PW-7 and PW-11 have not supported the prosecution case and they have turned hostile. PW-2 and PW-3 are the witnesses to the inquest and they have proved their signatures appearing on the inquest report. PW-5 is a hearsay witness whereas PW-9 happens to be a witness to the seizure of stick. Dr. Anil Kumar PW-8 had conducted post-mortem examination on the dead body of Xavier Bilung and he has found following injuries:- 1. Lacerated wound over the head on parietal region Size 3'' x 1/2'' x 1'' 2. Lacerated wound in lateral aspect above the left elbow joint size 1'' x 1/4'' x 1'' Learned counsel has submitted that learned Additional Sessions Judge has erred in convicting the appellant u/s. 302 IPC. The appellant is the younger brother of deceased. On the date of occurrence at about 8 p.m. the appellant reached to the place and started abusing. Thereafter, the deceased with his wife went to make complaint to his father who was residing at a distance of 100 yards. According to evidence of PW-1 while deceased and his wife were returning, the deceased was assaulted by the appellant by means of danda on his head. The entire evidence adduced by the prosecution if admitted to be correct, the appellant was not having intention to commit murder. He was not armed with any lethal weapon. He did not cause assault to the deceased when he first met with him. The annoyance caused to the appellant when complaint was made to his father. The father and mother of the appellant PW-4 and PW-5 respectively did not support the case of prosecution. Even assuming it to be correct, the appellant had caused assault by means of danda to his elder brother on his head that will not constitute offence punishable u/s. 302 IPC. Learned counsel for the appellant has further referred post-mortem report and the evidence of doctor PW-8. The injury caused to the deceased on his head was not with great force and that is apparent from the fact that no fracture was caused only clotted blood was found. Some laceration has caused to the brain. Learned counsel for the appellant has further referred post-mortem report and the evidence of doctor PW-8. The injury caused to the deceased on his head was not with great force and that is apparent from the fact that no fracture was caused only clotted blood was found. Some laceration has caused to the brain. On the basis of evidence the appellant could have been held guilty for the offence punishable u/s. 304 (Part II) of the IPC. To strengthen the submission, learned counsel has placed reliance on the judgment reported in (2003) 3 JLJR 777 . He has submitted that the facts of the case at hand mostly tallies with the facts of the case referred to above. The appellant has also remained in custody for about twelve years. 5. Learned A.P.P. has opposed the argument and submitted that the occurrence did not take place at spur of the moment. Repeated blows by means of lathi were hurled. The evidence available on record are sufficient to prove that the appellant had inflicted blows on the head of his brother with intention to commit murder. Learned Additional Sessions Judge has rightly held the appellant guilty and the judgment of conviction and sentence needs no interference. 6. We have considered the submissions advanced on behalf of both sides and also perused the evidence and the documents available. We have also gone through the impugned judgment. Admittedly the younger brother had killed his elder brother and the weapon used is a small stick. The brothers were intending to partition the property. The informant is none else but wife of deceased and she did not disclose as to what sort of exchange of hot talk had taken place between the two brothers on 4.9.2004 when the appellant reached to the house of deceased. She has simply stated that the appellant reached to their house and started abusing. Thereafter, the informant with her husband went to report the matter to her father-in-law who was residing at a distance of 100 yards. When the informant with her husband was returning home, the incident took place on the way. The appellant appeared and caused assault by means of danda on the head of deceased. Since the doctor did not find any fracture on skull bone, one can gather with what force the blow was inflicted. When the informant with her husband was returning home, the incident took place on the way. The appellant appeared and caused assault by means of danda on the head of deceased. Since the doctor did not find any fracture on skull bone, one can gather with what force the blow was inflicted. Since no fracture injury on the skull was detected it can be said that the appellant was not having intention to commit murder rather, he wanted to give some lesson because his brother had gone to make a complaint to their father. We have gone through the judgment relied upon by the appellant and we find that the facts appearing in that case are almost similar to the case at hand. In that very case family matter was being discussed between the members and in course of that one of the family member caused assault to another family member causing his death and this Hon'ble Court has altered the sentence under Section 304 (Part II) IPC instead of confirming the sentence u/s. 302 IPC. Considering all these aspects and judgment cited above, we feel inclined to alter the conviction and sentence from 302 IPC to Section 304 (Part II) of the IPC and sentence of seven years u/s. 304 (Part II) IPC shall serve the purpose. The conviction and sentence recorded u/s. 302 IPC stands set-aside, and the appellant shall suffer R.I. for seven years u/s. 304 (Part II) I.P.C. The appellant has already served out the sentence by remaining in jail for more than eleven years. In the circumstances, the convicting/ successor Court shall issue modified conviction warrant immediately so that the appellant may be released from custody if not wanted in any other case. 7. Accordingly, appeal stands dismissed with aforesaid modification in the conviction and sentence.