Jharkhand High Court
Matal Kisku vs The State Of Jharkhand on 13 February, 2006
Equivalent citations: 2006CRILJ2517, 2006 CRI. L. J. 2517, 2006 (2) AIR JHAR R 60 (2006) 2 EASTCRIC 5, (2006) 2 EASTCRIC 5
Bench: N. Dhinakar, M.Y. Eqbal
JUDGMENT
Page 1199
1. The accused appeals.
2. The appellant Matal Kisku was tried before the Sessions Judge, Dumka for the offences punishable under Section 302 and 323 of the Indian Penal Code, on the allegation that he caused death of the deceased Karu Kisku at 1.00 a.m. in the night of 28/29.11.1986 and that during the course of the same transaction he caused injuries to Zoba Murmu(PW-S) wife of the deceased Karu Kisku.
3. The learned Trial Judge, while finding the appellant guilty and sentencing him to imprisonment for life under Section 302 of the Indian Penal Code, directed him to suffer imprisonment for a period of six months under Section 323 of the Indian Penal Code, with a further direction that both the sentences will run concurrently. The present appeal is against the said conviction and sentence.
4. The facts are as follows:
The deceased Karu Kisku and PW-6, Zoba Murmu , were residing at Kalidaspur village within the jurisdiction of Pakur Police Station. The appellant is the brother of the deceased and was residing in the same village. There was a dispute pending between the deceased, Karu Kisku and the appellant, Matal Kisku. While the dispute was going on , at about 8.00 p.m. on 28.11.1986 the deceased and the appellant took food after taking drinks Page 1200 and started quarreling with each other. Even at 11.00 a.m. they were seen quarreling with each other. Thereafter, the deceased went to his house. Later on, PW-6, the wife of deceased woke up on hearing the quarreling noise. She came out of the house and found the appellant and the deceased quarreling with each other. At that time, the appellant's wife also reached the place and handed over something to the appellant. The appellant assaulted the deceased, Karu Kisku, with the instrument, which was handed over to him by his wife. The deceased, Karu Klisku fell down and raised alarm. When PW-6 intervened she was also beaten and she suffered injuries. On hearing the cries of the parties, PW-2, Shyam Murmu (he turned hostile) and Shiv Kisku reached the scene of occurrence. They found the deceased with injuries and took him to Angan. The Mukhiya of the village and the other villagers arrived at the place. On the next day at noon, on receipt of information, the police officer attached to Pakur Muffasil Police Station, PW-9, Nawal Kishore Mishra, reached the scene of occurrence and recorded the Fardbayan, Ext.4, given by PW-6. This was registered as a crime at the police station and investigation was taken up by him. On taking up of investigation, PW-9 conducted inquest over the dead body in the presence of the witnesses, during which witnesses were examined and the statements were recorded. The body of the deceased, Karu Kisku, was sent to the Government hospital at Pakur with the requisition. On receipt of the requisition, PW-1, Dr. R. Goswami, Deputy Superintendent, Subdivisional Hospital, Pakur conducted autopsy on the body of Karu Kisku and he found the following injuries :
i) One lacerated wound on the Middle of the fore head slightly on the left side 2 1/2 x 1" x scalp deep, beneath it the frontal bone had got depressed fracture;
ii) One diffused swelling on the back of the neck 3 1/2 x 2 1/2 ;
iii) Superficial scratch on the right knee joint 2 1/4" x 1 1/2".
The doctor issued Ext. 1, the post mortem certificate. In his opinion, the death is on account of intracranial haemorrhage and shock, as a result of injury No. 1 and as per his opinion the said injury was sufficient in the ordinary course of nature to cause death.
5. In the meantime, PW-6, Zoba Murmu, who suffered injuries, was also referred to the hospital and she was examined by the same doctor and the doctor found three injuries on her person:
i) One diffused swelling on the right forearm. X'ray advised for confirmation of fracture;
ii) Slight swelling of the middle of the lower chest;
iii) Tenderness in the middle of the lower back.
The doctor issued Ext.7, the Injury report. In his opinion, the injuries are simple in nature.
6. After the completion of the investigation, the final report was filed against the appellant.
7. When the appellant was questioned under Section 313 of the Code of Criminal Procedure, he denied all the incriminating circumstances but marked Ext. A, stating that he has been implicated in the crime on account of the disputes pending between him and his brother Karu Kisku.
Page 1201
8. The learned counsel appearing for the appellant submits that even if the entire facts are taken to be true, the offence committed by the appellant will not fall within the penal provision of Section 302 of the Indian Penal Code and that according to him , the appellant is entitled to the benefit of Exception 4 to Section 300 of the Indian Penal Code, as even according to the prosecution, the occurrence had taken place in a quarrel.
9. We have heard Mr. Vibhuti S. Sahay, learned A.P.P., appearing for the State and perused the materials placed before us. The doctor, PW-1, who conducted autopsy and issued the post mortem certificate, Ext.1, gave evidence that Karu Kisku died on account of injuries suffered by him and that injury No. 1 is sufficient in ordinary course of nature to cause death. The said fact was also not disputed before the trial court. We , therefore, hold that the deceased Karu Kisku died on account of homicidal violence.
10. The prosecution, in order to establish that the appellant caused injuries on the deceased, examined, PW-6, Zoba Murmu, the wife of the deceased. According to her, the deceased and the appellant took drinks at about 8.00 p.m. and thereafter started quarrelling with each other. Her evidence further shows that till 11.00 p.m. the quarrel continued and later the appellant took his bed in the house. It could also be seen from her evidence that at 1.00 a.m., she came out of her house on hearing quarrel and found her husband Karu Kisku and the appellant quarreling with each other and that during quarrel the appellant's wife came there and thereafter the appellant inflicted a blow with an iron rod , which was handed over to him by his wife. The above facts, therefore, show that a quarrel which commenced at 8.00 p.m. on 28.11.1986 continued till 1.00 a.m. of 29.11.1986. During the quarrel, the appellant caused injuries with an iron rod, which was handed over to him by his wife. The above evidence of PW-6 is trustworthy and, in fact, her evidence is also supported by medical evidence. We are also unable to reject the evidence of PW-6 since she has also suffered injuries during the course of the same transaction for which she was also examined by the doctor and the injury report was also marked indicating that she suffered simple injuries. When questioned by the doctor, PW-6 informed him that she suffered injuries when her husband was beaten by his brother, the appellant herein. It is, therefore, clear that the appellant caused injuries not only on PW-6 but also on the deceased during the quarrel, which unfortunately resulted in the death of Karu Kisku. We, therefore, accept her evidence and hold that the appellant caused the fatal injuries on the deceased, Karu Kisku.
11. This Court is now to decide as to the nature of the offence committed by the appellant. We have already noticed, while narrating the facts and discussing the evidence of PW-6, that the occurrence had taken place due to a quarrel between the appellant and the deceased. The quarrel which commenced at 8.00 p.m. on 28.11.1986 continued till 1.00 a.m. on 29.11.1986 and that during the quarrel the appellant caused injuries on the deceased by beating him with an iron rod. It is, therefore, clear that the appellant caused injuries on the deceased without premeditation upon a sudden quarrel and that it cannot be said that he acted in a cruel or unusual manner. We are, therefore, of the view, on the facts of the case, that the appellant is entitled to the benefit of Exception 4 to Section 300 of the India Penal Code. Accordingly, we set aside the conviction of the appellant under Section 302 of the Indian Penal Code and instead convict him under Section 304 Page 1202 part 1 of the Indian Penal Code for which he is directed to suffer rigorous imprisonment for a period of seven years.
12. With the above modification in sentence, the appeal is disposed of.
It is reported that the appellant is on bail. His bail bonds are cancelled. The Sessions Judge, Dumka will take steps to commit the accused to the prison for serving the sentence.
13. We place on record the services rendered by Mr. Ranjan Kumar Singh, who was appointed as Amicus Curiae, to argue the appeal.