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2017 DIGILAW 1627 (JHR)

Sugada Besara v. State Of Jharkhand

2017-09-09

PRAMATH PATNAIK, SHREE CHANDRASHEKHAR

body2017
JUDGMENT : S. Chandrashekhar, J. 1. Whether a single lathi blow (wooden stick) on the right side of the forehead of the deceased which ultimately resulted in death is sufficient to convict the appellant for offence punishable under section 302 IPC, is the precise question raised in the present Criminal (Jail) Appeal. 2. In S.T. Case No. 214 of 2005, the appellant has been convicted by the Additional Sessions Judge, Fast Track Court No. II, Ghatsila-Singhbhum East for committing murder of the deceased-Litta Besara and he has been sentenced to undergo R.I for life for the offence punishable under section 302 IPC. The judgment of conviction dated 29.01.2007 and the order of sentence dated 01.02.2007 are under challenge in the present criminal appeal. 3. The prosecution case, as narrated by wife of the deceased-Litta Besara namely, Buti Besara in her ferdbeyan recorded at 16.00 p.m on 13.03.2005, discloses that at about 5.00 p.m in the evening when she along with her husband returned home, the appellant-Sugada Besara came there in drunken condition and started abusing her husband. The informant tried to pacify him, however, the appellant did not listen and he lifted a wooden stick lying there and hit her husband on his head, whereupon he fell down on the ground and became unconscious. The accused ran away from her house and next day her husband died. She has disclosed that the quarrel took place on a dispute over Mahua tree. On the basis of her ferdbeyan Dhalbhumgarh (Gudabanda) P.S. Case No.19 of 2005 was registered against the appellant-accused under section 302 IPC. On completion of investigation police submitted charge-sheet against the sole accused and the court took cognizance of the offence under section 302 IPC. During the trial seven witnesses were examined by the prosecution in support of the charge framed against the appellant. The doctor who conducted the postmortem examination over the dead body of Litta Besara has been examined as P.W.1. The informant has been examined as P.W.2, and P.W.3 and P.W.4 are F.I.R and inquest report witnesses. One Bijan Kumar Bose, Advocate's Clerk has been examined as P.W.7 who has proved the formal F.I.R and the ferdbeyan. Investigating Officer in the case was not examined by the prosecution in the trial. 4. The informant has been examined as P.W.2, and P.W.3 and P.W.4 are F.I.R and inquest report witnesses. One Bijan Kumar Bose, Advocate's Clerk has been examined as P.W.7 who has proved the formal F.I.R and the ferdbeyan. Investigating Officer in the case was not examined by the prosecution in the trial. 4. Briefly stated, the informant-P.W. 2 reiterating her ferdbeyan stated in the court that the appellant-Sugada Besara lifted a stick (lathi) lying there in her house and gave a blow over the head of her husband. She has also stated that the accused gave 23 blows. In her cross-examination, she has admitted that she did not inform the chowkidar about the incidence. It is also apparent that she did not inform her neighbours namely, Ram Chandra Hansda and Mokara Murmu about the occurrence. They have been examined during the trial as P.W. 3 and P.W.4. The informant admits that Ram Chandra Hansda and Mokara Murmu stay in front of her house. She has also admitted that her husband used to take liquor and the day on which the incidence took place he had consumed liquor. The appellant is her younger brother-in-law. There are certain other discrepancies in her deposition in the court such as, she has stated in her cross-examination that when she came back from Kudiyan, where she has another house, she found her husband dead (paragraph 22), however, such discrepancies have been ignored by the learned Additional Sessions Judge observing that the informant is an illiterate woman who can commit such mistakes during her cross-examination. Though we are not in agreement with the observation of the learned Additional Sessions Judge however, we are inclined to ignore the aforesaid discrepancies in cross-examination of this witness for the reason that the witness was a Santhali speaking woman who was assisted by an Advocate-translator. 5. The doctor-P.W. 1 has opined that the injuries on the dead body were ante-mortem in nature and those were caused by hard and blunt substance. He has found the following injuries on the person of the deceased: Group Aabrasions (i) over right side of forehead (ii) over front of left knee. Group Binternal injuries (i) shaft tissue under the skin over whole of skull contused. (ii)Both parietal and frontal scalp bones having fissure fracture whole brain contused. 6. He has found the following injuries on the person of the deceased: Group Aabrasions (i) over right side of forehead (ii) over front of left knee. Group Binternal injuries (i) shaft tissue under the skin over whole of skull contused. (ii)Both parietal and frontal scalp bones having fissure fracture whole brain contused. 6. P.W. 3 and P.W. 4, who are neighbours and ferdbeyan and inquest report witnesses, have however denied that any seizure was made in their presence and they have pleaded ignorance of the contents of the First Information Report. The learned Additional Sessions Judge relying on the evidence led by the prosecution in S.T. Case No. 214 of 2005 has held that “All the witnesses are consistent on the point that the accused had assaulted the deceased on the date of occurrence.” 7. On reexamination of the entire evidence on record, we find that this is a serious error of record committed by the Additional Sessions Judge. Not all, but the informant-P.W. 2 only is a witness to the assault on the deceased. The doctor, of course, has corroborated the evidence of P.W. 2 when he found one abrasion over right side of forehead. 8. The facts and the circumstances proved by the prosecution establish that the appellant gave one lathi (wooden stick) blow on the right side of forehead of the deceased-Litta Besara. Now the question is, whether overt act by the appellant as found proved is sufficient to convict the appellant for the offence punishable under section 302 IPC? 9. The learned Additional Sessions Judge has found that; “so far as intention of the accused to causing death is concerned there appears no other evidence except that there was motive behind the quarrel which took place soon before alleged occurrence.” Evidently, the prosecution has not led any evidence which would conclusively establish that the appellant had requisite intention under clause Firstly or Secondly or Thirdly to section 300 IPC. In so far as applicability of clause Fourthly to section 300 IPC is concerned, the prosecution has failed to lead any evidence that the appellant had the requisite knowledge that the assault by a wooden stick was so imminently dangerous that it would in all probability result in death. Neither the shape nor size nor weight of the assault weapon has been proved. Neither the shape nor size nor weight of the assault weapon has been proved. The wooden stick (lathi), though allegedly seized by the police, was not produced during the sessions trial. The quarrel between the appellant and the deceased started on a dispute over Mahua tree. There was a previous partition between the parties. Appellant is the younger brother of the deceased. It was a sudden quarrel and the appellant has not taken any undue advantage or acted in a cruel or unusual manner, are the facts which stood proved when we examine the medical evidence, which discloses one abrasion injury on the right side of the forehead. There is no evidence regarding the intention behind the fatal consequence of the blow. Intention is a question of fact. In Wazira Vs. Emperor reported in AIR (27) 1940 ALL 113, Ismail J. observed: “Every injury on the head cannot be considered capable of causing death nor does every lathi blow on the head be considered fatal.” The first version of the prosecution case as narrated in the ferdbeyan of P.W. 2 does not indicate that there was premeditation. It was a sudden fight in which in heat of passion the appellant gave one blow with the wooden stick on the right side of the forehead of the deceased, which ultimately proved fatal. 10. In one of the earliest cases, Gurucharan Singh Vs. Emeror reported in AIR 1934 Lahore 467, death caused by single blow on head in a sudden quarrel has been held to be a case falling under Part II of section 304 IPC. It was held that the accused offender must be deemed to possess knowledge that the blow inflicted by him was likely to cause death. In Chenda Vs. State of Chhatisgarh reported in (2013) 12 SCC 110 referring to the parameters indicated in Gurmukh Singh Vs. State of Haryana [ (2009) 15 SCC 635 ], a single stick blow on head, which finally resulted in death, has been found attracting an offence under Part II of section 304 IPC. 11. Having regard to the aforesaid facts and circumstances in the case, we are of the considered opinion that the judgment of conviction dated 29.01.2007 and order of sentence dated 01.02.2007 in S.T. Case No. 214 of 2005 warrant interference. 11. Having regard to the aforesaid facts and circumstances in the case, we are of the considered opinion that the judgment of conviction dated 29.01.2007 and order of sentence dated 01.02.2007 in S.T. Case No. 214 of 2005 warrant interference. The appellant is held liable for culpable homicide not amounting to murder, for this case falls under 4th exception to section 300 IPC. The conviction of the appellant is converted to one under section 304 Part II IPC and he is sentenced to undergo R.I. for 10 years. He has already undergone sentence of 12 years, which is more than the maximum sentence prescribed under Part II of section 304 IPC. Accordingly, he shall be released from custody forthwith, if not required in connection to any other case. The instant Criminal Appeal stands allowed, in part.