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2018 DIGILAW 2740 (JHR)

Kisan Manjhi v. State of Jharkhand

2018-12-13

H.C.MISHRA

body2018
JUDGMENT : Heard learned counsel for the appellant and the learned counsel for the State. 2. The sole appellant is aggrieved by the impugned Judgment of conviction dated 27.11.2008 and Order of sentence dated 28.11.2008, passed by the learned 5th Additional Sessions Judge (F.T.C.), Dumka, in Sessions Case No.66 of 2008, whereby, the appellant has been found guilty and convicted for the offence under Section 302 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo rigorous imprisonment for life with fine of Rs.5,000/-, for the said offence. 3. The prosecution case was instituted on the basis of the fardbeyan of the informant, Sanjay Manjhi, the son of the deceased, Malti Devi, recorded at his village Upper Bahiyari, P.S. Jarmundi, District Dumka, on 21.12.2007 at about 2:10 P.M, wherein he has stated that on the same day at about 12:00-12:30 P.M, his uncle, Kisan Manjhi (the accused), along with his family members came to his house and started damaging their thatched roof, whereupon, his mother, Malti Devi objected the same. It is alleged that the wife of Kisan Manjhi caught hold the mother of the informant and Kisan Manjhi assaulted her by tangi on her head, causing bleeding injuries. The other accused persons also assaulted her mother. The accused persons also chased the informant Sanjay Manjhi and his sister Rinku Devi, who were in their house, whereupon they fled away. By the time, they returned back, they found their mother dead at the door of the house. On the basis of the fardbeyan given by the informant, Jarmundi P.S Case No.252 of 2007, corresponding to G.R No.1629 of 2007, was instituted for the offence under Sections 302 / 34 of the Indian Penal Code, against the accused, Kisan Manjhi and his family members, and investigation was taken up. After investigation, the police submitted the charge-sheet only against the accused, Kisan Manjhi. 4. After commitment of the case to the Court of Session, the charge was framed against the accused for the offence under Section 302 of the Indian Penal Code, and upon the accused’s pleading not guilty and claiming to be tried, he was put to trial. In course of trial, eleven witnesses were examined by the prosecution, including the I.O., and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. In course of trial, eleven witnesses were examined by the prosecution, including the I.O., and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. Out of the material witnesses examined, P.W.-3 Chhabil Manjhi and P.W.-5 Pancho Devi have turned hostile and have not supported the prosecution case at all. 5. P.W.-6 Sanjay Manjhi is the informant of the case. This witness has stated that the Malti Devi was his mother, who died about eight months ago. The occurrence took place at about 12:30 P.M. This witness along with his mother and sister Rinku Devi were in their house, when Kisan Manjhi along with other family members came and started damaging their thatched roof, which was objected by his mother. Kisan Manjhi assaulted his mother by tangi on her head. His other family members also assaulted her mother. When this witness and her sister tried to save their mother, they were also chased. He has stated that his sister had come to her parents’ place, two days prior to the occurrence, from her in-laws’ place. The police was informed, who came and recorded the fardbeyan of the informant, on which, he had put his signature. He has proved his signature on the fardbeyan, which was marked Exhibit-4 and has proved the signatures of the witnesses, Fuleshwar Kapri and Ganesh Kapri on the fardbeyan, which were marked Exhibits-4/1 and 4/2 respectively. He has identified the accused in the Court. In his cross-examination, this witness has stated that he and his sister were the only children of their mother. His sister Rinku Devi is married to Rajiv Mahra and her in-laws’ place is at a distance of about 4-5 Kms., form his village. He has also stated that the accused Kisan Manjhi is his own uncle, and they were living in the same house. In half portion of the house, the accused persons were living and in the half portion of the house, this witness and his mother were living. His grandmother was alive and was living with Kisan Manjhi. He has also stated that his father died while this witness was a child, before gaining his consciousness. He has denied the knowledge as to who was maintaining the family thereafter, and who had got his sister married. His grandmother was alive and was living with Kisan Manjhi. He has also stated that his father died while this witness was a child, before gaining his consciousness. He has denied the knowledge as to who was maintaining the family thereafter, and who had got his sister married. He has also stated that there is a wall of 5’-6’ between the house of the accused and this witness. He has stated that after the occurrence, he had gone to his maternal grandfather’s place, and his maternal grandfather is Ganesh Kapri, who had also visited the place of occurrence, and had put his signature on the fardbeyan. This witness had also stated that their lands had already been partitioned and they were doing their own cultivation. He has denied the suggestion that he is not the eyewitness to the occurrence, and to have falsely implicated the accused. 6. P.W.-1 Rinku Devi is the daughter of the deceased, and she has also supported the case as an eyewitness to the occurrence. She has stated that the occurrence had taken place about 6 ½ months ago at about 12:30 P.M and she was in her village Upper Bahiyari, which is her parents’ place. There was a quarrel for partition between the parties and it was decided that the thatched roof shall be in the share of her mother, which was being objected by her uncle Kisan Manjhi. Kisan Manjhi and his family members were abusing them and Kisan Manjhi assaulted his mother by tangi on her head, causing bleeding injuries and the brain matter also came out. When this witness objected, she was also chased, whereupon, she and her brother fled away and when they returned back, they found their mother dead. She has identified the accused in the Court, stating that he is her uncle. In her cross-examination, this witness has also stated that her father was two brothers and Kisan Manjhi is the elder brother. Her father died about 14-15 years ago, during her childhood. She has admitted in her cross-examination that after the death of her father, her family was looked after by her uncle Kisan Manjhi and her marriage was also performed by Kisan Manjhi about 6-7 years ago. She has stated that two days prior to the occurrence, she had come to her parents’ place. She has admitted in her cross-examination that after the death of her father, her family was looked after by her uncle Kisan Manjhi and her marriage was also performed by Kisan Manjhi about 6-7 years ago. She has stated that two days prior to the occurrence, she had come to her parents’ place. There was partition between both the families and they are living in the common house where there is a wall of about 5’-6’ height between their houses. This witness has also stated that the altercation had started about 5-10 minutes ago and thereafter, Kisan Manjhi assaulted her mother by tangi, due to which, her mother fell down and sustained injury. This witness was also chased and when they returned back after 5-10 minutes, they did not find anyone in the house. Her mother was lying dead there. She has stated that she gave information to the police also, and thereafter, she went to her in-laws’ place, which was at a distance of about 3-4 Km. away from her parents’ place. She has denied the suggestion that she was not present at her parents’ place and to have falsely implicated the accused. 7. P.W.-7 Rajiv Mahra, the husband of P.W.-1 Rinku Devi, P.W.-8 Fuleshwar Kapri, P.W.-9 Ganesh Kapri and P.W.-10 Sukhdeo Kapri, are the maternal relatives of the informant, and they have supported the occurrence as hearsay witnesses, stating that upon getting the information, they came there and they saw the dead body with the bleeding injury on head. They were informed by Sanjay Manjhi and Rinku Devi that the accused had assaulted the deceased by tangi on her head, causing her death at the spot. Fuleshwar Kuyri and Ganesh Kapri have also identified their signatures on the fardbeyan, which were earlier marked Exhibits 4/1 and 4/2. These witnesses have identified the accused in the Court. 8. P.W.-2 Jaikant Mishra is a priest of a Temple, and he has also claimed to be the Pradhan of the village. He has stated that there was a Panchayati for the partition in the family, in which, a wall was put between the shares of both the parties, in their house. 8. P.W.-2 Jaikant Mishra is a priest of a Temple, and he has also claimed to be the Pradhan of the village. He has stated that there was a Panchayati for the partition in the family, in which, a wall was put between the shares of both the parties, in their house. He is also a witness to the seizure list of the bloodstained soil and the tangi, and has proved his signature, as well as signature of a witness on the seizure list, which were marked as Exts.-1 and 1/1, but he has stated that these articles were not seized in his presence, and he has no knowledge as to how the deceased had died. 9. P.W.-4 is Dr. Debasish Rakshit, who had conducted the post-mortem examination on the dead body of the deceased on 22.12.2007, and had found the following ante-mortem injuries on the dead body of the deceased:- (i) Sharp cut wound on left side of occipital region of scalp 4” x 2 ½” x deep up-to cranial cavity. Brain matter and blood material were coming out from this wound. Occipital bone fractured at the left side. Brain matter and meninges found lacerated and blood material with clots found accumulated inside the cranial cavity. He has stated that the death was caused due to the hemorrhage and shock as a result of the injury, which was sufficient enough to cause the death in the normal course of nature. The wound was caused by sharp and heavy substance. He has proved the post-mortem report to be in his pen and signature, which was marked Exhibit-3. 10. P.W.-11 Tej Narayan Mishra is the I.O of the case. This witness has stated that on 21.12.2007, he was posted at Jarmundi Police Station, and there was an information by way of rumor that in the village Upper Bahiyari, one lady had been murdered. He made the sanha entry about the information, and proceeded towards the place of occurrence, where he reached at about 2:00 P.M. He recorded the fardbeyan of Sanjay Manjhi, which he has proved, and the same was marked as Exhibit-4/3. He prepared the inquest report of the dead body, which also he has proved, and the same was marked Exhibit 5/1. He sent the dead body for post-mortem examination. He prepared the inquest report of the dead body, which also he has proved, and the same was marked Exhibit 5/1. He sent the dead body for post-mortem examination. He arrested the accused Kisan Manjhi from his house and recorded his confessional statement, which he has proved, and the same was marked Exhibit-6. On the basis of the confessional statement, the blood stained tangi was recovered from his house, which was seized and he has proved the seizure list, which was marked Exhibit-2/1. He inspected the place of occurrence, where he found the dead body of the deceased, in front of door of the house of the informant, in the pool of blood. He seized the blood stained soil and he has proved the seizure list, which was marked Exhibit-1/2. He has stated that the house of the accused is situated adjacent to the place of occurrence, and there were blood stains on the door also, but the same could not be taken. There was a thatched roof also near the place of occurrence. He has proved the formal F.I.R., which was marked as Exhibit-7. He has stated that he found the other accused persons absconding. He recorded the statements of the witnesses and after getting the post-mortem report and completing the investigation, he submitted the charge-sheet against this accused only, as there was no convincing evidence against the others. He has identified the accused in the Court. In his cross-examination, he has stated that he had not found any damaged thatched roof at the place of occurrence, and he had apprehended the accused on the same day at 16:10 hours. He had not sent the blood stained soil or tangi for forensic examination. He has denied the suggestion of making faulty investigation. 11. The statement of the accused was recorded under Section 313 of the Cr.P.C, wherein he has denied the evidence against him. No evidence was adduced by the defence. On the basis of the evidence on record, the accused appellant has been convicted and sentenced by the Trial Court below, for the offence as aforesaid. 12. Learned counsel for the appellant has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law. On the basis of the evidence on record, the accused appellant has been convicted and sentenced by the Trial Court below, for the offence as aforesaid. 12. Learned counsel for the appellant has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law. Though learned counsel has submitted that the evidence of the eyewitnesses are not reliable and the prosecution has not been able to bring home the charge against the accused beyond all reasonable doubts, but he has very fairly confined his arguments, stating that even if the evidences of the witnesses are found to be reliable, the offence shall be made out only under Section 304 of the Indian Penal Code, as it shall come within the purview of Exception-4 to Section 300 of the Indian Penal Code, inasmuch as, the occurrence had taken place after an altercation for the partition between the parties. After the death of his younger brother, it was this accused who was maintaining the family and it is also admitted by P.W.-1 Rinku Devi, that her marriage was also performed by this accused. It was only due to the altercation for the partition of the house, that the occurrence had taken place, in a sudden fight, and it is submitted that the offence, if any, is made out only under Section 304 of the Indian Penal Code, and not under Section 302 of the Indian Penal Code. It is submitted by the learned counsel that the appellant is in custody for more than 12 years, since the year 2007 itself, and has sufficiently been punished for the said offence. 13. Learned counsel for the State, on the other hand, has opposed the prayer, submitting that the prosecution case is fully supported by P.W.-1 Rinku Devi and P.W.-6 Sanjay Manjhi, the informant, and both of them are the children of the deceased, who were present at the time of the occurrence and are the natural eyewitnesses to the occurrence. It is stated that there is direct and specific allegation against the appellant to have assaulted the deceased by tangi on her head and the assault was such that the brain matter came out from the wound, as is evident from the evidence of P.W.-4 Dr. Debasish Rakchit, and the post-mortem report proved by him as Exhibit-3. It is stated that there is direct and specific allegation against the appellant to have assaulted the deceased by tangi on her head and the assault was such that the brain matter came out from the wound, as is evident from the evidence of P.W.-4 Dr. Debasish Rakchit, and the post-mortem report proved by him as Exhibit-3. The force with which the assault was made clearly shows that the assault was made with the intention to cause the death of the deceased. Learned counsel submitted that the case is fully made out under Section 302 of the Indian Penal Code, and there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, worth any interference by this Court. 14. Having heard the learned counsels for both the sides and upon going through the evidence on record, we find that P.W.-1 Rinku Devi and P.W.-6 Sanjay Manjhi are the children of the deceased and they have fully supported the prosecution case as eyewitnesses to the occurrence. The evidence of P.W.-1 Rinku Devi clearly shows that at the time of occurrence, an altercation was going on for the partition of the house, during which, this accused assaulted her mother by tangi on her head, which proved fatal. It is an admitted fact that the accused is the own uncle of these witnesses and their father had died during their childhood. Though P.W.-6 Sanjay Manjhi, the informant, has denied the knowledge as to who had maintained the family after the death of his father, but the evidence of P.W.-1 Rinku Devi clearly shows that it was this accused, who was maintaining the family after the death of her father and he had also got her married. It is in this backdrop that we have to see as to how the occurrence took place. There was dispute between both the parties for the partition of the family property, for which there was an altercation at the time of occurrence. The evidence of P.W.-1 Rinku Devi clearly shows that in course of altercation for the partition, the accused had assaulted the deceased on her head, causing her death at the spot. 15. There was dispute between both the parties for the partition of the family property, for which there was an altercation at the time of occurrence. The evidence of P.W.-1 Rinku Devi clearly shows that in course of altercation for the partition, the accused had assaulted the deceased on her head, causing her death at the spot. 15. Exception - 4 to Section 300 of the Indian Penal Code, reads as follows:- “Exception 4 - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation - It is immaterial in such cases which party offers the provocation or commits the first assault.” 16. We are of the considered view that the facts of this case are fully covered by Exception-4 to Section 300 of the Indian Penal Code, and in such cases, it is immaterial as to which party offered the provocation, or made the assault first. Though the medical evidence of P.W.-4 Dr. Debasish Rakchit, and the post-mortem report proved by him as Exhibit-3, show that this is a case of single injury, indicating that there was no repetition of assault upon the deceased, but the intention with which the assault was made is also immaterial for Exception-4 to Section 300 of the Indian Penal Code. We are also of the considered view that on the basis of the evidence on record, the offence is clearly made out under Section 304 Part-I of the Indian Penal Code, and not under Section 302 of the Indian Penal Code. 17. The offence under Section 304 Part-I of the Indian Penal Code is also punishable with imprisonment for life, but this is the maximum punishment prescribed for the offence by law. The other punishment prescribed is imprisonment of either description for a term which may extend to 10 years. We are of the considered view, that in the facts of the present case, the interest of justice would be served, if the appellant is sentenced to undergo R.I. for 10 years, for the said offence. 18. The other punishment prescribed is imprisonment of either description for a term which may extend to 10 years. We are of the considered view, that in the facts of the present case, the interest of justice would be served, if the appellant is sentenced to undergo R.I. for 10 years, for the said offence. 18. For the forgoing reasons, the impugned Judgment of conviction dated 27.11.2008, passed by the learned 5th Additional Sessions Judge (F.T.C.), Dumka, in Sessions Case No.66 of 2008, convicting the appellant Kisan Manjhi, for the offence under Section 302 of the Indian Penal Code, is hereby modified to the extent, that the appellant is convicted for the offence under Section 304 Part-I of the Indian Penal Code, instead. Consequently, the Order of sentence dated 28.11.2008, passed by the Trial Court below, is also set aside, and the appellant is sentenced to undergo R.I. for 10 years, for the said offence. The appellant Kisan Manjhi is in custody. As he has completed this sentence, he is directed to be released and set at liberty forthwith, if his detention is not required in any other case. 19. We are also of the considered view that P.W.-1 Rinku Devi, and P.W.-6 Sanjay Manjhi, who are the daughter and son respectively, of the deceased, are the victims of crime in this case, and they are entitled to be duly compensated under the Victim Compensation Scheme under Section 357-A of the Cr.P.C. We accordingly, direct the Member Secretary, Jharkhand State Legal Services Authority, to take up the matter with the concerned District Legal Services Authority, so that both these victims of crime are duly compensated at an early date. Let a copy of this Judgment be sent to the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, for the needful. 20. This appeal is accordingly, dismissed, with the modification in the impugned Judgment of conviction and Order of sentence, as aforesaid. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment. Appeal dismissed accordingly.