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2018 DIGILAW 982 (JHR)

Kanhai Hansda v. State of Jharkhand

2018-05-02

B.B.MANGALMURTI, H.C.MISHRA

body2018
JUDGMENT : Heard learned counsel for the appellant and the learned counsel for the State. 2. The appellant is aggrieved by the impugned Judgment of conviction and Order of sentence dated 11.10.2007, passed by the learned Addl. Sessions Judge, Ghatshila, in S.T. No.20 of 2006, whereby the sole appellant has been found guilty and convicted for the offence under Section 302 of the Indian Penal Code, on the allegation that he had committed the murder of his own son. Upon hearing on the point sentence, the appellant has been sentenced to undergo R.I. for life for the said offence. 3. The prosecution case was instituted on basis of the fardbeyan of the informant, Nimai Hansda, the son of the accused and brother of the deceased Doctor Hansda, recorded on 15.9.2005 at M.G.M Hospital, Jamshedpur, wherein it is stated that on 14.9.2005 at about 6:00 P.M, there was a quarrel between his father Kanhai Hansda and his brother Doctor Hansda, as they were in drunken state. In the meantime, his father Kanhai Hansda brought a basuli (a wood cutting instrument used by carpenters) from the house and assaulted his brother Doctor Hansda on his head and neck, injuring him. His injured brother tried to flee away, but he fell down due to the injuries. He was brought to the hospital where he was declared dead. On the basis of the Fardbeyan of the informant, Chakulia P.S Case No.59 of 2005, corresponding to G.R No. 415 of 2005, was instituted for the offence under Section 302 of the Indian Penal Code, against the sole accused and investigation was taken up. After investigation, the police submitted the charge-sheet in the case. 4. After commitment of the case to the Court of Session, charge was framed against the appellant for the offence under Section 302 of the Indian Penal Code, and upon his pleading not guilty and claiming to be tried, he was put to trial. In course of trial, eleven witnesses were examined on behalf of the prosecution, including the Investigating Officer and the Doctor, who had committed the post-mortem examination on the dead body of the deceased. 5. In course of trial, eleven witnesses were examined on behalf of the prosecution, including the Investigating Officer and the Doctor, who had committed the post-mortem examination on the dead body of the deceased. 5. Out of the material witnesses examined by the prosecution, P.W.-1 Thakur Das Hansda, P.W.-3 Shankar Hansda, P.W.-5 Sita Baski and P.W.-6 Nimai Hansda, the informant of the case and the son of the accused, have turned hostile and have not supported the prosecution case at all. P.W.-2 Dubraj Murmu is only a hearsay witness, who has stated that he had heard that the deceased was killed by his father, but in his cross-examination, he has again stated that he had no knowledge about the occurrence. 6. The prosecution case is supported by P.W.-9 Parwati Hansda, the mother of the deceased and the wife of the appellant. This witness has stated that the occurrence had taken place on a Thursday at about 6:00 P.M. Her husband was cutting the straw for feeding the cattle and she was feeding the cattle, mixing the straw with grass. In the meantime, her son Mohan Hansda @ Doctor Hansda came there and he took up the quarrel with her husband, whereupon, her husband got enraged, entered the house and brought the basuli and assaulted her son on his head and neck, causing injuries on him. Her son tried to flee away, but he fell down. He was being brought to the hospital, but he died in the way. She has been put to extensive cross-examination, but there is nothing of much importance in her cross-examination. 7. P.W.-4 Kanu Ram Hansda is only a witness to the inquest report of the dead body on which he has identified his signature, which was marked Exhibit-1. Similarly, P.W.-7 Mangal Mandi and P.W.-11 Gurucharan Mandi are the witnesses to the seizure list of seizing the basuli, on which they have proved their signatures and the same were marked Exhibits-3 & 3/2 respectively. 8. P.W.-8 is Dr. J. Srinivas Rao, who had conducted the post-mortem examination on the dead body of the deceased on 16.9.2005 and had found the following injuries:- External injury:- 1. Incised wound with margin bruised, size - 4 cm x 2 cm x bone deep over left side of the head. 2. 8. P.W.-8 is Dr. J. Srinivas Rao, who had conducted the post-mortem examination on the dead body of the deceased on 16.9.2005 and had found the following injuries:- External injury:- 1. Incised wound with margin bruised, size - 4 cm x 2 cm x bone deep over left side of the head. 2. Incised wound with margin bruised, size - 2 cm x .5 cm x muscle deep over left upper part of the chest. Just above left cavity (1 cm. above). Internal injury:- 1. Contusion left parietal region of 10 x 8 cm. in size. 2. Fracture left parietal bone measuring 4 cm in length deep up to brain. 3. Extradural haemorrhage 10 x 6 cm with contusion left parietal and occipital lobe of brain. He has stated that the injuries were ante-mortem in nature, caused by heavy sharp cutting weapon, and the death was caused due to head injury. He has proved the post-mortem report to be in his pen and signature, which was marked Exhibit-4. 9. P.W.-10 Mahanayak Tiu is the I.O of the case. This witness has proved the fardbeyan and the formal FIR, which were marked Exhibits 2/1 & 5 respectively. He took over the charge of investigation and he inspected the place of occurrence, which he has detailed in his evidence. He also arrested the accused and recorded his confessional statement. He has proved the seizure list of seizing the basuli which was marked Exhibit 3/1. He received the post-mortem report and submitted the charge-sheet in the case. 10. The statement of the accused was recorded under Section 313 of the Cr.P.C., wherein he has denied the evidence against him. On the basis of the evidence on record, particularly the evidence of P.W.-9 Parwati Hansda, the mother of the deceased and the wife of the accused, the Court below has convicted and sentenced the appellant for the offence under Section 302 of the Indian Penal Code. 11. On the basis of the evidence on record, particularly the evidence of P.W.-9 Parwati Hansda, the mother of the deceased and the wife of the accused, the Court below has convicted and sentenced the appellant for the offence under Section 302 of the Indian Penal Code. 11. Learned counsel for the appellant has submitted that the only evidence against the appellant is the evidence of P.W.-9 Parwati Hansda, who has supported the prosecution case, but this witness has not stated that the assault was made upon her son by the accused with an intention to cause his death, rather she has stated that due to the quarrel which was picked up by the deceased, he became enraged, brought the basuli from the house and assaulted her deceased son. Learned counsel submitted that on the basis of the evidence on record, it cannot be said that the appellant was having the intention to cause the death of his own son, rather it was in a fit of anger, that he had assaulted his son, which ultimately proved to be fatal. Learned counsel submitted that in the facts of this case, the offence, if any, is made out under Section 304 Part-II of the Indian Penal Code, and not under Section 302 of the Indian Penal Code. 12. Learned counsel for the State on the other hand, has opposed the prayer and has submitted that on the basis of the evidence of the mother, P.W.-9 Parwati Hansda, which is fully corroborated by the medical evidence of P.W.-8 Dr. J. Srinivas Rao, and the post-mortem report proved by him as Exhibit-4, the offence is clearly 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. 13. Having heard learned counsels for both sides and upon going through the record, we find that though in the FIR, as also in the evidence of P.W.-9 Parwati Hansda, it is stated that the assaults were made on the head and the neck of the deceased by the accused, but the evidence of P.W.-8 Dr. J. Srinivas Rao shows that one injury was on the head of the deceased and the other injury was on the chest. There was no injury on the neck of the deceased. J. Srinivas Rao shows that one injury was on the head of the deceased and the other injury was on the chest. There was no injury on the neck of the deceased. The fact however, remains that even P.W.-9 Parwati Hansda, who has supported the prosecution case, nowhere stated that the assaults were made with the intention to cause the death of her son, rather she has clearly stated that due to the quarrel, which was taken up by the deceased himself with his father, in a fit of anger, the accused brought the basuli and assaulted his son. On the basis of the evidence on record, it cannot be said that the assaults were made by the accused appellant upon his son, with the intention to cause the death of his own son, rather it clearly shows that the occurrence had taken place in a fit of anger by the appellant. 14. In our considered view, on the basis of the evidence on record, the offence is made out under Section 304 Part-II of the Indian Penal Code, and not under Section 302 of the Indian Penal Code. As such, the impugned Judgment of conviction and Order of sentence cannot be sustained in the eyes of law, and the same are required to be modified. 15. We are informed that the appellant is in custody since the year 2005 itself, and has remained in custody for more than about 12 years. 16. For the foregoing reasons, the impugned Judgment of conviction dated 11.10.2007, passed by the learned Addl. Sessions Judge, Ghatshila, in S.T. No.20 of 2006, convicting the appellant Kanhai Hansda, for the offence under Section 302 of the Indian Penal Code, is hereby, modified to the extent that the appellant Kanhai Hansda is found guilty and convicted for the offence under Section 304 Part-II of the Indian Penal Code instead. The Order of sentence passed against the appellant is also hereby set aside, and appellant Kanhai Hansda is sentenced to undergo R.I. for ten years for the offence under Section 304 Part-II of the Indian Penal Code. As the appellant Kanhai Hansda has already served out that sentence, it is directed that he shall be released and set at liberty forthwith, if his detention is not required in any other case. 17. As the appellant Kanhai Hansda has already served out that sentence, it is directed that he shall be released and set at liberty forthwith, if his detention is not required in any other case. 17. This appeal is accordingly, dismissed, with the modification in the Judgment of conviction and Order of sentence, as aforesaid. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.