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2019 DIGILAW 745 (JHR)

Khudu Hansda v. State Of Jharkhand

2019-03-26

APARESH KUMAR SINGH, KAILASH PRASAD DEO

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JUDGMENT 1. Heard learned Amicus Curiae Mr. Rajesh Kumar and Learned Additional Public Prosecutor Mr. Abhay Kumar Tiwari. 2. Appellant is serving custody since 30.08.2008 during trial and upon his conviction for the charge under sections 302/201 of the Indian Penal Code under the impugned judgment dated 19.01.2013 rendered by the learned District and Additional Sessions Judge, Ghatsila in Sessions Trial Case No. 41/2009, whereunder he has been sentenced to undergo rigorous imprisonment for life along with a fine of Rs. 5,000/- under section 302 of the Indian Penal Code, in default whereof, to suffer additional rigorous imprisonment for one year and at the same time, ordered to suffer rigorous imprisonment for three years under section 201 of the Indian Penal Code with a fine of Rs. 5,000/- with similar default clause. Sentences were directed to run concurrently. 3. Prosecutor case is based upon the fardbeyan of the informant Niranjan Kisku (P.W.11) recorded by the Sub Inspector P. Nag, Officer-in-Charge, Baharagora P.S. at 20.30 Hrs. at Angarisol village on 28.08.2008. The gist of the allegations, as narrated through the mouth of the informant, is inter-alia as under: The informant alleges that at 19.30 Hrs. beside his house, his neighbor Ramsai Hansda (P.W.5) along with informants elder brother Sukhlal Kisku were sitting on parapet having tobacco when informant heard a brawl. Thereafter, he went towards the house of Ramsai Hansda and saw Khudu Hansda, son of late Tebru Hansda and younger brother of Ramsai Hansda, assaulting his elder brother Sukhlal Kisku with a bamboo stick on his head and causing him to fell down. On seeing this, he along with his brother and villagers called other persons to the place of occurrence and saw pool of blood lying near the house of Ramsai Hansda, but the informants brother was not there. On being searched in torch light, his brother was found dead at a distance of 40 meters in a bamboo orchard near the house of Ramsai Hansda and his dead body was covered with a raincoat. He had suffered injury on his head and lot of blood was lying there. The informant further alleged that on 25 th /26 th August 2008, a football match was organized at Angarisol village. He had suffered injury on his head and lot of blood was lying there. The informant further alleged that on 25 th /26 th August 2008, a football match was organized at Angarisol village. In that regard, his elder brother Sukhlal Kisku had asked the accused Khudu Hansda about profit and loss out of the proceeds of the football match, whereupon Khudu Hansda blamed his elder brother Ramsai Hansda and the informants elder brother Sukhlal Kisku that they are acting as a leader and after saying this, he took over a bamboo stick lying close to parapet and assaulted the informants elder brother Sukhlal Kisku on his head number of times and thereafter in order to conceal the evidence, dragged the dead body to nearby bamboo orchard. He further alleged that the accused Khudu Hansda also assaulted his elder brother Ramsai Hansda and rendered him injured. 4. Baharagora P.S. Case No. 63/2008 was registered on 28.08.2008 under the provisions of Sections 302/201 of the Indian Penal Code on such allegations against the sole accused Khudu Hansda (appellant herein). Police found the case true upon investigation and submitted charge sheet bearing no. 66/2008 dated 26.11.2008 under sections 302/201 of the Indian Penal Code and cited eleven witnesses. Cognizance was taken by the learned Court on 28.11.2008 and after commitment to the Court of Sessions, charges were framed against the sole accused under sections 302/201 of the Indian Penal Code on 01.09.2009 by the learned Additional Sessions Judge-cum-F.T.C.-I, Ghatsila. Charges were explained to the accused, to which he pleaded not guilty. Apparently, the accused denied the charge and thereafter trial proceeded. 5. Prosecution examined twelve witnesses during trial, as under: P.W.1: Somay Baske P.W.2: Jadav Hembram P.W.3: Dandu Ram Kisku P.W.4: Kunu Kisku P.W.5: Ramsai Hansda P.W.6: Booti Hansda P.W.7: Parmeshwar Kisku P.W.8: Sunaram Soren P.W.9: Anil Kisku P.W.10: Ravindra Hansda P.W.11: Niranjan Kisku P.W.12: Dr. Nandu Honhara It also proved certain documentary evidence which are marked up to Ext.5, as under: Ext.1 : Dandu Ram Kisku (P.W.3) proved his signature on seizure list. Ext.2 : Anil Kisku (P.W.9) proved his signature on the carbon copy of inquest report. Ext.3 : Ravindra Hansda (P.W.10) proved his signature on seizure list. Ext.3/a: Ravindra Hansda (P.W.10) proved his signature on Arrest Memo. Ext.4: Niranjan Kisku, the informant, proved his signature on fardbeyan. Ext.4/i: Fardbeyan Ext.4/ii: Signature of S.I. on fardbeyan Ext.5 : Postmortem Report. Ext.2 : Anil Kisku (P.W.9) proved his signature on the carbon copy of inquest report. Ext.3 : Ravindra Hansda (P.W.10) proved his signature on seizure list. Ext.3/a: Ravindra Hansda (P.W.10) proved his signature on Arrest Memo. Ext.4: Niranjan Kisku, the informant, proved his signature on fardbeyan. Ext.4/i: Fardbeyan Ext.4/ii: Signature of S.I. on fardbeyan Ext.5 : Postmortem Report. 6. After closure of the prosecution evidence, accused was examined under section 313 of the Cr.PC where he denied his involvement and pleaded himself to be innocent. 7. Learned Trial Court was convinced on the basis of the evidence on record that the case of the prosecution has been proved beyond all reasonable doubt and the accused deserved to be convicted for the offence of murder and concealment of evidence under sections 302/201 of the Indian Penal Code. That is how the appellant is before us. 8. Learned Amicus Curiae while presenting the case of the appellant, has assisted the Court on both factual and legal grounds. The entire case of the appellant has been built around Exception-4 to Section 300 of the Indian Penal Code , which reads as under: "Section 300 Murder-Except in the cases herein after excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or - Secondly.-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or- Thirdly.-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or- Fourthly.-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exception 1._When culpable homicide is not murder.Culpable homicide is not murder if the offender, whilst deprived of the power of self- control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death or any other person by mistake or accident. Exception 1._When culpable homicide is not murder.Culpable homicide is not murder if the offender, whilst deprived of the power of self- control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death or any other person by mistake or accident. The above exception is subject to the following provisos:- First.- That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly.- That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly.- That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Exception 2.- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose 7 of such defence. Exception 3.- Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. 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. Exception 5.- Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent." 9. Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault. Exception 5.- Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent." 9. In support of the aforesaid submissions, learned Amicus Curiae has in particular pointed to the salient relevant facts in issue which go to show that the offence was not committed in a premeditated manner, but was a result of a sudden fight between the accused and two persons namely, Ramsai Hansda (P.W.5) and the deceased Sukhlal Kisku on the question of proceeds of football match and after the quarrel, the accused/appellant in a heat of passion, inflicted sole injury on the head of the deceased by use of a bamboo stick which was lying near the parapet without acting in a cruel or unusual manner and without intending to cause his death. The brother of the appellant, injured witness (P.W.5) has denied any previous enmity or quarrel between his brother and the deceased, while P.W.11, the informant and brother of the deceased, has not stated any word about any pre-existing enmity or dispute between the accused and the deceased. The entire incidence occurred on the spur of the moment and P.W.4 Kunu Kisku who has deposed as an eyewitness along with P.W.5 Ramsai Hansda, elder brother of the accused as also P.W.11 in his cross-examination at para-11 admit that there was a sudden fight which resulted after a brawl/quarrel and there was no premeditation to commit the offence of murder on the part of the accused. The weapon of assault is a bamboo stick which is not of such an offensive nature and it has neither been procured from a distance after considerable lapse of time between quarrel and sudden fight to show that the accused got sufficient time to cool down and prepare himself before inflicting assault. The evidence of the Medical Officer (P.W.12) Dr. Nandu Honhara who conducted postmortem on the dead body of the deceased Sukhlal Kisku also corroborates the aforesaid facts and evidences on record that the deceased suffered only one injury on his head which was caused by hard and blunt substance and that injury no. The evidence of the Medical Officer (P.W.12) Dr. Nandu Honhara who conducted postmortem on the dead body of the deceased Sukhlal Kisku also corroborates the aforesaid facts and evidences on record that the deceased suffered only one injury on his head which was caused by hard and blunt substance and that injury no. 2 which is abrasion on right elbow and hand could be as a result of fall on the ground upon such assault. If the evidence on record is read together in such manner, the appellant has been able to make out a case to derive the benefit of Exception-4 to Section 300 of the Indian Penal Code to be converted under section 304 Para-II of the Indian Penal Code i.e. culpable homicide not amounting to murder. Appellant has served custody for more than ten and half years by now and therefore, his conviction and sentence may be suitably modified by releasing him from custody counting the period undergone. 10. Learned Additional Public Prosecutor has vehemently opposed the submission of the learned Amicus Curiae on the aforesaid score. The sheet anchor of the case of the State is that the prosecution evidence on record based on the testimony of Kunnu Kisku (P.W.4), Ramsai Hansda (P.W.5), Butti Hansda (P.W.6), Suna Ram Soren (P.W.8), Anil Kisku (P.W.9) including Niranjan Kisku (P.W.11) and Dr. Nandu Honhara (P.W.12) conclusively establish the guilt of the accused for the offence of murder to which no exception can be granted as prayed for. The injuries inflicted by the accused on vital parts of the body of victim Sukhlal Kisku as corroborated by the medical evidence of Dr. Nandu Honhara (P.W.12) clearly proves that the appellant had intentionally caused an injury which was sufficient in ordinary course of nature to cause death. The case of the prosecution therefore, squarely comes within the provision of Section 300 of the I.P.C. Learned Trial Court had by a well-reasoned judgment considered the entire evidence on record in totality and rightly convicted the appellant for the aforesaid charge, which deserves no interference in appeal. Therefore, the appeal should be dismissed as being without merit. 11. The case of the prosecution therefore, squarely comes within the provision of Section 300 of the I.P.C. Learned Trial Court had by a well-reasoned judgment considered the entire evidence on record in totality and rightly convicted the appellant for the aforesaid charge, which deserves no interference in appeal. Therefore, the appeal should be dismissed as being without merit. 11. We have considered the submission of learned Amicus Curiae and learned Additional Public Prosecutor and gone through the materials on record including the fardbeyan; framing of the charge; evidence of 12 prosecution witnesses and 5 prosecution exhibits; statement of the accused under Section 313 Cr.P.C and also perused the impugned judgment of conviction and order of sentence. In order to test the plea raised by learned Amicus Curiae, we have scanned the entire medical evidence carefully. Bereft of unnecessary details, if the evidence of the informant Niranjan Kisku (P.W.11), whose fardbeyan put the law into motion, is read with the testimony of Kunnu Kisku (P.W.4), Ramsai Hansda (P.W.5), Butti Hansda (P.W.6), Suna Ram Soren (P.W.8), Anil Kisku (P.W.9), we can safely cull out the following relevant facts in issue proved by the prosecution in order to judge, whether the case of the appellant would lie under Exception 4 to Section 300 of the Indian Penal Code, which are as under: (i) From the evidence of Ramsai Hansda (P.W.5), the elder brother of the appellant who also suffered injury, specifically at para-3 of his cross examination and absence of any evidence of previous enmity or dispute between the accused and the deceased, as evident from the statement of Niranjan Kisku (P.W.11), it can be said that no previous enmity or motive of crime has been attributed by the prosecution also. (ii) From the evidence of these prosecution witnesses, Kunu Kisku (P.W.4) at para 1, Ramsai Hansda (P.W.5) at para 1, Booti Hansda (P.W.6) at para 3, Suna Ram Soren (P.W.8) at para 1, Anil Kisku (P.W.9) at para 8 and Niranjan Kisku (P.W.11) at para 11, it is evident that the entire occurrence was an upshot of a heated discussion and quarrel over the proceeds of the football match held at village Angarisol on 25-26.08.2008 in respect of which, elder brother of the appellant Ramsai Hansda (P.W.5) and elder brother of the informant Sukhlal Kisku (deceased) were asking the accused about the profit and loss account of income/proceeds of the match. These discussions led to a heated quarrel between the accused and the other two persons and as per the testimony of these prosecution witnesses, it grew into a sudden fight between them. It was in course of sudden fight that on the spur of the moment without any premeditation, the appellant took over a bamboo stick lying next to the parapet where his elder brother and elder brother of the informant Sukhlal Kisku (deceased) were sitting and inflicted injuries on his elder brother Ramsai Hansda (P.W.5) as also on the deceased Sukhlal Kisku. The elder brother of the appellant sustained injuries and fell unconscious and as per his deposition, could not see the subsequent assault on the elder brother of the informant i.e., the deceased. From the manner of the occurrence described by these prosecution witnesses, it is clear that the assault was not made by the appellant after sufficient cooling down and opportunity to ruminate, but in a spontaneous act during the course of sudden fight. The deceased suffered only one injury on the head which proved to be fatal as per the description of the two injuries by the Medical Officer Dr. Nandu Honhara (P.W.12), which is as under: (i) Fracture of occipital bone 4 cm x 1 cm x cm; beneath the fracture, clot blood found. (ii) Abrasion on right elbow and hand 10 cm x 4cm x 3 cm Opinion Above mentioned injuries are ante mortem in nature. Death is due to shock and hemorrhage caused by above mentioned injuries. Time since death - within 24 hourSubstance used - Hard and blunt substance. Injury no.2 being abrasion on right elbow and hand is such, which could have resulted due to fall on the ground after a singular assault on the head. Absence of repetition of blows indicates lack of intent to commit the murder. However, death ensued as a result of such an assault. The evidence on record examined in the aforesaid fashion, in the light of the ingredients of Exception 4 to Section 300 of the Indian Penal Code leads us to the conclusion that the entire occurrence took place in course of a sudden fight on the spur of the moment and without any pre-meditation. The evidence on record examined in the aforesaid fashion, in the light of the ingredients of Exception 4 to Section 300 of the Indian Penal Code leads us to the conclusion that the entire occurrence took place in course of a sudden fight on the spur of the moment and without any pre-meditation. The appellant did not resort to any cruelty or acted in an unusual manner in committing the assault, but inflicted only one injury on the head of the victim by means of bamboo stick, which ultimately proved to be fatal. Learned Amicus Curiae has placed reliance on the opinion of the Apex Court in the case of Manoj Kumar versus. State of Himachal Pradesh and analogous cases reported in (2018) 7 SCC 327 contained in para 26 to 28 and 30 whereunder the proposition laid down in the case of Sridhar Bhuyan versus State of Orissa reported in (2004) 11 SCC 395 and Camilo Vaz Versus State of Goa reported in (2000) 9 SCC 1 have also been discussed by the Apex Court while reiterating the position of law. We derive profit in reproducing the extract of the judgment as under: 26. Exception 4 to Section 300 IPC reads as under: "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 offenders having taken undue advantage or acted in a cruel or unusual manner." 27. There is no dispute about the ingredients of Exception 4 to Section 300 IPC, the following conditions are to be satisfied namely: (i) that the incident happened without premeditation; (ii) in a sudden fight; (iii) in the heat of passion; (iv) upon a sudden quarrel; and (v) without the offender having taken undue advantage or acted in a cruel or unusual manner. 28. It may be relevant to note that in Sridhar Bhuyan v. State of Orissa, it was held as under: (SCC pp. 396-97, paras 7-8) "7. For bringing in operation of Exception 4 to Section 300 IPC, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. 8. 396-97, paras 7-8) "7. For bringing in operation of Exception 4 to Section 300 IPC, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. 8. The fourth exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of the prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds mens sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. 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 have 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"." 30. In Camilo Vaz v. State of Goa, referring to the ambit of Section 304 of the Code, this Court in similar set of circumstances held thus: (SCC p. 9, para 14) "14. This section is in two parts. If analysed, the section provides for two kinds of punishment to two different situations: (1) if the act by which death is caused is done with the intention of causing death or causing such bodily injury as is likely to cause death. This section is in two parts. If analysed, the section provides for two kinds of punishment to two different situations: (1) if the act by which death is caused is done with the intention of causing death or causing such bodily injury as is likely to cause death. Here the important ingredient is the "intention"; (2) if the act is done with the knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death. When a person hits another with a danda on a vital part of the body with such force that the person hit meets his death, knowledge has to be imputed to the accused. In that situation the case will fall in Part II of Section 304 IPC as in the present case." 12. The facts of the instant case, as dealt with hereinabove, show that the parties had worked themselves into a fury on account of verbal altercation in the beginning which graduated into a sudden fight where fatal assault took place without previous deliberation or determination on the part of the appellant. In such a sudden fight, both the parties are more or less to be blamed. Heat of passion requires that there must be no time for passion to cool down. As such, in the facts of the present case also, we do not find that the appellant got time to cool down and then react in a gruesome and premeditated manner to commit fatal assault. In such type of case, we can safely conclude that the intent to commit murder was missing. Therefore, the appellant can derive the benefit of Exception 4 to Section 300 of the Indian Penal Code. As such, his conviction under Section 302 of the Indian Penal Code deserves to be modified to one under culpable homicide not amounting to murder. As a result, appellant is to be punished under Section 304 Part II of the Indian Penal Code. We find that the appellant is undergoing custody since 30.08.2008 and by now, has remained in custody for 10 years or more. As such, the sentence is modified to the period of custody already undergone. The appellant is directed to be released from custody forthwith, if not wanted in any other case. 13. We find that the appellant is undergoing custody since 30.08.2008 and by now, has remained in custody for 10 years or more. As such, the sentence is modified to the period of custody already undergone. The appellant is directed to be released from custody forthwith, if not wanted in any other case. 13. In the result, the appeal is partly allowed in the manner and to the extent indicated herein above. The impugned judgment of conviction and order of sentence is modified, as indicated herein above. Let the Lower Court Record be sent down to the Court below along with the copy of the judgment. 14. Before parting, we deem it proper to record our appreciation for the learned Amicus Curiae who has made considerable effort in developing the case of the appellant during course of hearing. Let his admissible legal remuneration be paid by the Secretary, High Court Legal Services Committee on production of certified copy of the judgment along with an application within a period of four weeks from its receipt.