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2017 DIGILAW 2190 (JHR)

Sukhlal Lohra v. State of Jharkhand

2017-12-19

ANIL KUMAR CHOUDHARY, H.C.MISHRA

body2017
ORDER : 1. The sole appellant is aggrieved by the Judgment of conviction dated 5.4.2008 and Order of sentence dated 10.4.2008 passed by the Additional Judicial Commissioner, Fast Track Court-VIII, Ranchi in S.T. Case No. 564 of 2006 corresponding to G.R. Case No. 2699A of 2005 arising out of Angara P.S. Case No. 58/2005 whereby and whereunder the sole, appellant has been found guilty and convicted for the offence punishable under Section 302 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs. 5,000/- only and in default of payment of fine simple imprisonment of three months. 2. The case of the prosecution in brief is that on 25.8.2005 at about 7.O' clock in the morning the informant Sukhram Lohra who is the son of the deceased Jagannath Lohra residing in Village-Dokad, was informed by one boy from Village-Kamta that the father of the informant namely Jagannath Lohra was assaulted by the sole appellant with lathi and the father of the informant had become unconscious. The deceased father of the informant, his mother and his younger brother namely Sukhlal Lohra-who is the sole appellant of this case used to live at Village-Kamta. On getting the information the informant immediately rushed to Village-Kamta and found his father dead. On enquiry the mother of the informant informed the informant that scuffle took place between the deceased and appellant in connection with bringing water and grazing goat and the sole appellant of this appeal assaulted his deceased father Jagannath Lohra with lathi on his head. The deceased Jagannath Lohra sustained injuries on his head and fell down unconscious and died. After the occurrence the sole accused-appellant fled away from the place of occurrence along with the lathi by which he assaulted his father. 3. On the basis of the fardbeyan of the informant, Angara P.S. Case No. 58 of 2005 was registered on 25.8.2005 for the offence punishable under Section 302 of the Indian Penal Code and the investigation of the case was taken up. Upon completion of investigation, the police submitted charge-sheet against the sole accused person. Upon commitment of the case to the Court of Sessions, charge was framed against the accused person namely Sukhlal Lohra for committing murder of his father Jagannath Lohra by giving repeated blows on the head of Jagannath Lohra with lathi. Upon completion of investigation, the police submitted charge-sheet against the sole accused person. Upon commitment of the case to the Court of Sessions, charge was framed against the accused person namely Sukhlal Lohra for committing murder of his father Jagannath Lohra by giving repeated blows on the head of Jagannath Lohra with lathi. Upon the accused persons pleading not guilty and claiming to be tried, he was put on trial. In course of trial, prosecution altogether examined 11 witnesses including P.W. 1-Dr. Chandresekhar Prasad who conducted post mortem of the dead body of the deceased and P.W. 11-Wasi Ahmed, who is the investigating officer of the case. Out of the 11 witnesses examined by the prosecution P.W. 2-Dhaneshwar Lohra, P.W. 3-Saligram Lohra, P.W. 4-Chamo Bedia, P.W. 5-Harilal Bedia, P.W. 6-Mani Devi, P.W. 7-Shanti Devi and P.W. 10-Ganesh Singh Munda are not the eyewitnesses to the occurrence and all of them reached the place of occurrence after the occurrence on alarm. They all have stated that they heard that the sole accused namely Sukhlal Lohra assaulted the deceased Jagannath Lohra by lathi causing him head injury, to which the deceased Jagannath Lohra succumbed. P.W. 2-Dhaneshwar Lohra is a witness of inquest of the dead body of the deceased and he proved his signature. P.W. 10-Ganesh Singh Munda is also a witness of the inquest and he has also put his signature on the inquest report. During cross-examination all these witnesses have stated that they have not seen the occurrence and simply heard about the same. P.W. 8-Sukh Ram Lohra is the informant of the case. He has corroborated the contents of the fardbeyan. He was informed by his mother P.W. 9-Lalo Devi that the accused Sukhlal Lohra assaulted the deceased. He has also proved his signature along with signature of Dhaneshwar Lohra on the fardbeyan which have been marked as Exts.-2 & 1 respectively. P.W. 9-Lalo Devi is the sole eyewitness of the case. She is the wife of the deceased and mother of the sole appellant. She has stated that on the date of occurrence, at about 6.O' clock in the morning, she was in her house along with her husband and the accused. She saw the accused Sukhlal Lohra assaulting the deceased Jagannath Lohra with lathi on his forehead and in this manner the accused killed the deceased. She has stated that on the date of occurrence, at about 6.O' clock in the morning, she was in her house along with her husband and the accused. She saw the accused Sukhlal Lohra assaulting the deceased Jagannath Lohra with lathi on his forehead and in this manner the accused killed the deceased. On her alarm, the accused ran away with the lathi, with which he was assaulting the deceased, into the forest. After the arrival of the villagers she intimated about the occurrence to them. In paragraph no. 2 of her cross-examination she has stated that the accused person is her son and is not mentally sound and due to his unsoundness of mind he has killed the deceased. 4. P.W. 1-Dr. Chandresekhar Prasad has stated that on 25.8.2005 at 15:45 hours he conducted the post mortem examination on the dead body of the deceased-Jagannath Lohra and found following injuries on the dead body of the deceased:- "Abrasion:--No. 1-2 cm X 1/2 cm on the right lateral neck. Lacerated wounds:-No. 1-2 cm X 1 cm X soft tissues on the right side of chin No. 2-4 cm X 1 cm X bone deep on the right forehead. Internal:-There is diffused contusion of Right Frontal scalp and Right lemporalior muscle with crack fracture of Right Temporal parietal bone. There is contusion of with presence of sub-dual blood and blood clots over right hemisphere of limb." In his opinion, all the injuries were ante mortem in nature which can be caused by hard and blunt object and the death occurred due to head injuries. The death occurred 6 to 10 hours before the post mortem examination. He also stated that the post mortem report is in his pen and signature which was marked as Ext.-1. In his cross-examination he has stated that such injuries are possible on fall from a height. 5. P.W. 11-Wasi Ahmed is the Investigating Officer of the case. In his deposition he has described the place of occurrence in detail. He has also proved the inquest report. On being proved by him, the fardbeyan has been marked as Ext.-3 and the inquest report has been marked as Ext.-5. In his cross-examination he has stated that during investigation it has not. come to his notice that the accused person is of unsound mind. 6. He has also proved the inquest report. On being proved by him, the fardbeyan has been marked as Ext.-3 and the inquest report has been marked as Ext.-5. In his cross-examination he has stated that during investigation it has not. come to his notice that the accused person is of unsound mind. 6. The statement of the accused person was recorded under Section 313 of the Cr.P.C. wherein, the accused denied the evidence against him and he pleaded to be an innocent. No witness was examined by the defence in this case. On the basis of the evidence on the record, the appellant was found guilty and was convicted and sentenced by the trial court as aforesaid. 7. At the time of hearing, it was submitted by the learned counsel for the appellant that the appellant has been of unsound mind and because of unsoundness of mind as categorically stated by the P.W. 9, he was incapable of knowing that the nature of the act done by him was either wrong or contrary to law, hence the accused person-appellant be acquitted in this case by giving him the benefit of Section 84 of the Indian Penal Code. The second limb of argument of the learned counsel for the appellant was that, as the occurrence took place at the spur of moment. and the accused was not having the intention of causing death while committing the alleged assault and he has only assaulted the. deceased with lathi without any premeditation, hence the conviction of the appellant under Section 302 of the Indian Penal Code be modified to be one under the second part of Section 304 of the Indian Penal Code. 8. The learned counsel for the appellant in this connection relied upon the Judgment of Hon'ble Supreme Court of India, in the case of Sic. Surain Singh Vs. State of Punjab, reported in (2017) 5 SCC 796 [:2017 (2) JLJR (SC) 254], wherein in paragraph 15 the Hon'ble Court referred to the judgment in the case of State of A.P. Vs. Rayavarapu Punnayya and Another (1976) 4 SCC 382 in paragraphs 12 and 21 of which it was held as under:- "12. In the scheme of the Penal Code. "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice versa. Rayavarapu Punnayya and Another (1976) 4 SCC 382 in paragraphs 12 and 21 of which it was held as under:- "12. In the scheme of the Penal Code. "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment. proportionate to the gravity of this generic offence. the Code practically recognises three degrees of culpable homicide. The first is what may be called. "culpable homicide of the first degree". This is the greatest form of culpable homicide. which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then. there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is. also. the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304. 21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder", on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be. whether the accused has done an act by doing which he has caused the death of another. Proof of such causal. connection between the act of the accused and the death. leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative. the stage for considering the operation of Section 300 of the Penal Code. is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in Section 300. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder". punishable under. the first or the second part of Section 304. depending. respectively. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder". punishable under. the first or the second part of Section 304. depending. respectively. on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive. but the case comes within any of the exceptions enumerated in Section 300. the offence would still be "culpable homicide not amounting to murder". punishable under the first part of Section 304. of the Penal Code."(Emphasis given by us) In paragraph-16 of the case of Sic-Surain Singh Vs. State of Punjab. (supra) the Hon'ble Court referred to the case of Budhi Singh Vs. State of Himachal Pradesh, (2012) 13 SCC 663 in paragraphs 18 and 19 of which it was held as under: 18. The doctrine of sudden and grave provocation is incapable of rigid construction leading to or stating any principle of universal application. This will always have to depend on the facts of a given case. While applying this principle, the primary obligation of the court is to examine from the point of view of a person of reasonable prudence if there was such grave and sudden provocation so as to reasonably conclude that it was possible to commit the offence of culpable homicide, and as per the facts, was not a culpable homicide amounting to murder. An offence resulting from grave and sudden provocation would normally mean that a person placed in such circumstances could lose self-control but only temporarily and that too. in proximity to the time of provocation. The provocation could be an act or series of acts done by the deceased to the accused resulting in inflicting of injury. 19. Another test that is applied more often than not is that the behaviour of the assailant was that of a reasonable person. A fine distinction has to be kept in mind between sudden and grave provocation resulting in sudden and temporary loss of self-control and the one which inspires an actual intention to kill. Such act should have been done during the continuation of the state of mind and the time for such person to kill and reasons to regain the dominion over the mind. Once there is premeditated act with the intention to kill. Such act should have been done during the continuation of the state of mind and the time for such person to kill and reasons to regain the dominion over the mind. Once there is premeditated act with the intention to kill. it will obviously fall beyond the scope of culpable homicide not amounting to murder....."(Emphasis given by us) In paragraph-17 of the case of Sic-Surain Singh Vs. State of Punjab. (supra) the Hon'ble Court referred to the case of Kikar Singh vs. State of Rajasthan, (1993) 4 SCC 238 in paragraphs 8 and 9 of which, it was held as under: "8. The counsel attempted to bring the case within Exception 4. For its application all the conditions enumerated therein must be satisfied. The act must be committed without premeditation in a sudden fight in the heat of passion; (2) upon a sudden quarrel; (3) without the offender's having taken undue advantage; (4) and the accused had not acted in a cruel or unusual manner. Therefore, there must be a mutual combat or exchanging blows on each other. And however slight the first blow, or provocation, every fresh blow becomes a fresh provocation. The blood is already heated or warms up at every subsequent stroke. The voice of reason is heard on neither side in the heat of passion. Therefore, it is difficult to apportion between them respective degrees of blame with reference to the state of things at the commencement of the fray but it must occur as a consequence of a sudden fight i.e. mutual combat and not one side track. It matters not what the cause of the quarrel is. whether real or imaginary. or who draws or strikes first. The strike of the below must be without any intention to kill or seriously injure the other. If two men start fighting and one of them is unarmed while. the other uses a deadly weapon. the one who uses such weapon must be held to have taken an undue advantage denying him the entitlement to Exception 4. True the number of wounds is not the criterion. but the position of the accused and the deceased with regard to their arms used. the manner of combat must be kept in mind when applying Exception 4. When the deceased was not armed but the accused was and caused injuries to the deceased with fatal results. True the number of wounds is not the criterion. but the position of the accused and the deceased with regard to their arms used. the manner of combat must be kept in mind when applying Exception 4. When the deceased was not armed but the accused was and caused injuries to the deceased with fatal results. the Exception 4 engrafted to Section 300 is excepted and the offences committed would be one of murder. 9. The occasion for sudden quarrel must not only be sudden but the party assaulted must be on an equal footing in point of defence. at least at the onset. This is specially so where the attack is made with dangerous weapons. Where the deceased was unarmed and did not cause any injury to the accused even following a sudden quarrel if the accused has inflicted fatal blows on the deceased, Exception 4 is not attracted and commission must be one of murder punishable under Section 302. Equally for attracting Exception 4 it is necessary that blows should be exchanged oven if they do not all find their target. Even if the fight is unpremeditated and sudden, yet if the instrument or manner of retaliation be greatly disproportionate to the offence given, and cruel and dangerous in its nature, the accused cannot be protected under Exception 4...." (Emphasis given by us) The Hon'ble Apex Court in Sic-Surain Singh vs. State of Punjab. (supra) held in paragraph-14 as under: 14. The help of Exception 4 can be invoked if death is caused (a) without premeditation. (b) in a sudden fight. (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner. and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4. it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage". (Emphasis given by us) 9. The learned Addl. P.P. on the other hand defended the impugned judgment of conviction and order of sentence and submitted that P.W. 9 has categorically proved the case of the prosecution beyond reasonable doubt. It was also submitted that the plea of unsoundness of mind has no legs to stand because the said plea being not the truth was neither came to the notice of the investigating officer, as has been mentioned categorically by him in paragraph no. 5 of his deposition as P.W, 11 nor the said plea was taken at the time of trial even though it is the contention of the-appellant that he has been of unsoundness of the mind from before the trial which state of mind continues and the learned trial court, who had the opportunity of seeing the appellant in person, has categorically mentioned in the impugned judgment itself that the said plea was taken as defence. It was further submitted that the testimony of P.W. 9 remained unimpeachable. She being the mother of the accused could not have any motive for the false implication of the accused. It was further submitted that the testimony of P.W. 9 remained unimpeachable. She being the mother of the accused could not have any motive for the false implication of the accused. It is also submitted that the testimony of the PW-9 was corroborated by the testimony of P.W. 1, hence it is submitted that the evidence in the record is sufficient to bring home the charge for the offence punishable under Section 302 of the Indian Penal Code against the accused-appellant and the learned trial court having rightly held so and there being no illegality in the impugned judgment of conviction and order of sentence, this appeal being devoid of any merit be dismissed. 10. So far as the contention of the appellant regarding the unsoundness of mind is concerned, it is settled principle of law, as has been held by the Hon'ble Apex Court, in the case of Bapu vs. State of Rajasthan, reported in (2007) 8 SCC 66 , in paragraph-13 that the standard to be applied is whether according to the ordinary standard, adopted by reasonable men, the act was right or wrong. The mere fact that the accused is conceited, odd, irascible and his brain is not quite all right or that the physical and mental ailments from which he suffered had rendered his intellect weak and had affected his emotions or will, or that he had committed certain unusual acts, in the past or that he was liable to recurring fits of insanity at short intervals, or that he was subject to getting epileptic fits but there was nothing abnormal in his behavior, or that his behavior was queer, cannot be sufficient to attract the application of the Section 84 of the Indian Penal Code. Similarly in the case of Surendra Mishra Vs. State of Jharkhand, (2011) 11 SCC 495 : the Hon'ble Supreme Court of India relying upon the judgment of Bapu (supra) in paragraph no. 11 t held as under: "11. In our opinion, an accused who. seeks exoneration from liability of an act under Section. 84 of the Penal Code is to. prove legal insanity and not medical insanity. Expression “unsoundness of mind" has not been defined in the Penal Code, and it has mainly been treated as equivalent to. insanity. But the term "insanity" carries different meaning in different contexts and describes varying degrees of mental disorder. Every person who. 84 of the Penal Code is to. prove legal insanity and not medical insanity. Expression “unsoundness of mind" has not been defined in the Penal Code, and it has mainly been treated as equivalent to. insanity. But the term "insanity" carries different meaning in different contexts and describes varying degrees of mental disorder. Every person who. is suffering from mental disease is not ipso facto exempted from criminal liability. The mere fact that the accused is conceited. add. irascible and his brain is not quite all right. or that the physical and mental ailments from which he suffered had rendered his intellect weak and affected his emotions or indulges in certain unusual acts. or had fits of insanity at short intervals or that he was subject to. epileptic fits and there was abnormal behaviour or the behaviour is queer. are not sufficient 'to attract the application of Section" 84 of the Penal Code."(Emphasis given by us) Considering the facts of this ,case in the touchstone of the 'afarementianed, settled principles of law, the evidence in the recard that after the accurrence the 'accused persanfled away into. the forest with the lathi, clearly shows that he has the knowledge about the consequences of the acts done by him., The alleged unsoundness of mind 'of, the accused appellant was not even noticed by the investigating officer. The said plea was also not taken let alone being proved, on behalf of the accused-appellant during the trial, even though it is submitted an his behalf that he has been of unsound mind from . before the accurrence which continued. It is a settled principle of law as has been held by the Hon'ble Supreme Court of India in paragraph-19 of the case of State of Rajasthan vs. Shera Ram, (2012)1 SCC 602 [: 2012(1) JLJR (SC)30] that the onus would be on the accused to prove by expert evidence that he is suffering from such mental disorder or mental condition that he could not be expected to be aware of the consequences of his act. We are afraid the appellant has miserably failed to discharge the said onus. We are afraid the appellant has miserably failed to discharge the said onus. The trial court that had the opportunity to watch the accused throughout the proceeding of the case, as the accused has all along been in custody during the trial, has also not accepted the said plea of unsoundness of mind and has mentioned the same to be only plea of defence. In view of these facts and circumstances, we are of the considered view that this is not a fit case where the benefit under Section 84 of the Indian Penal Code could be given to the accused. 11. The evidence put forth by the prosecution through the PW-9 who is the mother of the accused-appellant is trustworthy, unimpeachable and inspire confidence. The fact that she is the mother of the accused-appellant and she has no axe to grind against the accused-appellant as well as the fact that she is the natural solitary eyewitness of the occurrence enhances the credibility of her testimony. The evidence of the PW-9 is corroborated by the medical evidence of the PW-1 the doctor who conducted the autopsy as well as other witnesses examined by the prosecution in this case. Thus we are of the considered view that the evidence in the record is sufficient to establish that the accused-appellant gave lathi blows on the head of the deceased consequent upon a scuffle which resulted in the death of the deceased. But considering the fact that lathi blows were given by the appellant to the deceased consequent upon a scuffle and there is no evidence in the record that he had the intention to murder the deceased and that the occurrence took place at the spur of the moment without any prior planning or premeditation, we are of the considered opinion that this is a fit case where the conviction of the appellant be modified to one under second part of Section 304 of the Indian Penal Code. Accordingly the conviction of the accused-appellant is modified from under Section 302 of the Indian Penal Code to under second part of Section 304 of the Indian Penal Code and he is sentenced to rigorous imprisonment for ten years. 12. Since the appellant has already undergone custody for more than 10 years, he should be set at liberty, unless his detention is required in connection with any other case. 12. Since the appellant has already undergone custody for more than 10 years, he should be set at liberty, unless his detention is required in connection with any other case. Accordingly this appeal is allowed in part with the modification of conviction of the appellant from one under Section 302 Indian Penal Code to one under second part of Section 304 of the Indian. Penal Code and consequent modification in sentence from life imprisonment with fine to rigorous imprisonment for ten years. 13. Let the lower court record be sent back to the court concerned forthwith along with a copy of the judgment.