Jharkhand High Court
Sunny Mahto vs The State Of Jharkhand on 5 February, 2020
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar, Ratnaker Bhengra
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
[Against the judgment of conviction dated 06.03.2013 and the order of the
sentence dated 13.03.2013 passed by the learned Additional Sessions
Judge-II, Jamshedpur in Sessions Trial Case No. 284 of 2009]
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Criminal Appeal (D.B.) No.261 of 2013
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Sunny Mahto, son of Sri Madan Mahto, resident of Sarjamda, Purana
Basti, PO and PS Parsudih, Jamshedpur, Dist. East Singhbhum.
......Appellant
Versus
The State of Jharkhand ......Respondent
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For the Appellant : Mr. D.K. Chakraverty, Advocate
For the Respondent : Ms. Vipul Divya, APP
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CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
: HON'BLE MR. JUSTICE RATNAKER BHENGRA
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JUDGMENT
Per, Shree Chandrashekhar, J. Dated:5th February, 2020 Oral Order The sole appellant has suffered the judgment of conviction under section 323 and section 302 of the Indian Penal Code and under section 27 of the Arms Act dated 06.03.2013 and the order of the sentence dated 13.03.2013 for the said offences passed by the learned Additional Sessions Judge-II, Jamshedpur against him in Sessions Trial Case No. 284 of 2009.
2. On the basis of the fardbeyan of Gopi Mardi, which was recorded in the midnight of 16.04.2009 at about 1:30 a.m. at MGM hospital, Parsudih P.S. Case No. 71 of 2009 has been registered against the appellant and unknown under sections 323/341/324/307 read with section 34 of the Indian Penal Code and under section 27 of the Arms Act. During the investigation, identity of the unknown accused persons was not established and a charge-sheet was submitted only against the appellant.
3. During the trial, the prosecution has examined five witnesses; the informant is PW-2.
-2-4. The prosecution has projected PW-1 and PW-2 as the eye- witnesses.
5. In his fardbeyan, the informant has stated that in the night of 15.04.2009 he along with his friends had gone to Parsudih for watching a dance programme. There they had visited a drinking place and were enjoying drinks (Hadia). In the meantime the appellant came there and asked them to leave the place. The informant and his friends have thereafter left the place and gone to the dance programme. After about half an hour they came back to the drinking place again and when they were enjoying their drinks the appellant again came back and started assaulting him. When Sudhir Sinku objected and tried to intervene, the appellant whipped out a pistol and fired at him and thereafter he fled away. At that time the appellant was accompanied by few friends. On their raising hulla and hearing the sound of gunshot several persons came there and Sudhir Sinku was taken to the MGM hospital on an auto rickshaw. In the court, he has narrated a similar story about the incident in the night of 15.04.2009. He has stated that he had gone to see the dance programme and was enjoying drinks at a nearby place. The appellant came there with his friends and started marpit and when Sudhir Sinku tried to intervene the appellant had fired at him. PW-1 who is also an eye-witness has described the incident in a similar manner. He has stated about the appellant visiting the drinking place, a quarrel between him and the appellant and the appellant firing a pistol shot at Sudhir Sinku.
6. PW-1 and PW-2 have remained unshaken during their cross-examination and nothing material could be elicited by the defence from them. In his cross examination, PW-1 has stated that the drinking place was at a distance of at about 20-25 ft. from the dancing place. He has stated that though 80-90 persons had assembled there after firing and there was a commotion but no one tried to apprehend the appellant because he was holding a pistol. He has affirmed the fardbeyan stating that it was read over to him. He has also stated that while fleeing away the appellant had threatened him not to disclose his name before the police. PW-2 has also stated about threat by the appellant and distance between the dancing place and the drinking place about 50 ft. PW-3 is brother of Sudhir Sinku. At the time of occurrence he was watching the dance -3- programme and on hearing hulla he has reached the place of occurrence. He has found his brother lying on the ground. He has stated that they have taken him to TMH hospital for treatment.
7. The minor discrepancy in testimony of PW-1 and PW-2 and a stray statement in cross-examination of PW-2 whereunder he has stated that there was no light (light nehi tha) would not create a doubt on complicity of the appellant in the crime.
8. By now, it is well-accepted that on account of delay, forgetfulness, fear, stress and like reasons minor inconsistency is bound to happen in testimony of the prosecution witnesses. A witness when he is examined in the court, may be after several months or years, is not expected to describe the incident which has happened on the fateful day/ night with all minutest details.
9. We find that PW-1 and PW-2 are reliable and trustworthy witnesses.
10. From the aforesaid narration of the occurrence, presence of the appellant at the place of occurrence and at the time of occurrence is proved. Sudhir Sinku has suffered firearm injury which has been proved by the prosecution through the evidence of Dr. A.K. Choudhary. He has conducted the post-mortem examination on 02.06.2009 at about 4:00 p.m. and found the following injuries on Sudhir Sinku:
"(A) Stitched Wound:- (1) Infected wound over outer aspect of left side chest wall 15 cm below shoulder line and 14 cm left lateral to the mid line. No. of stitched one only wound size 1 cm (2) Over left side outer aspect of neck 1 cm.
(B) Infected Wound over front of abdomen with exposed abdominal mass due to sloughening of external abdominal wall, measuring 22 cm x 7 cm x cavity deep and two side holes on left side of abdomen due to sloughening of external wall over upper and lower part intestine and mesentery adhered in one mass lumen.
(C) Tracheostomy Wound:- (1) Over front of lower neck in healing area stage 1 ½ x ¼ cm x tracheal lumen."
11. Now the question is whether on such evidence the appellant can be convicted under section 302 of the Indian Penal Code.
12. Section 300 of the Indian Penal Code provides that culpable homicide is murder if the act by which death has been caused falls under any one of the four clauses under section 300, but at the same time it also -4- provides that culpable homicide is not murder if the act by which death has been caused falls under any one of the five exceptions thereunder.
13. The death of Sudhir Sinku has been caused about forty-five days after he has suffered firearm injury at the hands of the appellant; the incident has taken place on 15.04.2009 and he has died on 01.06.2009. On such facts, applicability of clause firstly, secondly, and thirdly under section 300 of the Indian Penal Code in the present case is completely ruled out. In so far as clause fourthly under section 300 of the Indian Penal Code is concerned, firing from a pistol must impute knowledge to an accused that his act is imminently dangerous, but then, since death has been caused after forty-five days and in the opinion of the doctor cause of death was septicemia and toxemia, clause fourthly is also not attracted in the present case.
14. The case of the appellant squarely falls under Exception 4 to section 300 of the Indian Penal Code. In "Surinder Kumar Vs. Union Territory, Chandigarh" reported in (1989) 2 SCC 217, the Supreme Court has indicated the essential ingredients which are necessary to cover a case under Exception-4 to section 300 IPC, thus;
"7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation;
(iii) the act was done in a heat of passion; and (iv) the assailant has not taken any undue advantage or acted in a cruel manner.
The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly............................."
15. The incident had happened at the spur of the moment and in a sudden fight the appellant had fired a shot at Sudhir Sinku. The informant has stated that when the appellant started a quarrel with him Sudhir Sinku objected and tried to intervene whereupon the appellant has fired at him. No second shot was fired by the appellant at Sudhir Sinku and, therefore, it can be safely inferred that he has not taken undue advantage or acted with cruelty. The incident had happened suddenly and from the -5- prosecution's evidence it cannot be inferred that the appellant has fired at Sudhir Sinku with pre-meditation. It is also relevant to record that in his cross-examination PW-1 has stated that previously there was no quarrel with the appellant.
16. In view of the aforesaid facts, we hold that the appellant is liable to be convicted for culpable homicide not amounting to murder and, accordingly, the judgment of conviction of the appellant, namely, Sunny Mahto under section 302 of the Indian Penal Code dated 06.03.2013 and the order of sentence of RI for life and fine of Rs.1000/- for the offence under section 302 of the Indian Penal Code passed by the learned Additional Sessions Judge-II, Jamshedpur in Sessions Trial Case No. 284 of 2009 are set-aside.
17. The appellant, named-above, is convicted and sentenced to RI for seven years under section 304 Part-II of the Indian Penal Code. His conviction under section 27 of the Arms Act is affirmed, however, his conviction under section 323 of the Indian Penal Code for causing hurt to the prosecution witnesses is set-aside.
18. Ms. Vipul Divya, the learned APP states that the appellant, namely, Sunny Mahto, who is in custody, has remained in jail for more than ten years.
19. Accordingly, the appellant, named-above, shall be set free forthwith, if not required in connection to any other case.
20. In the result, Criminal Appeal (D.B.) No.261 of 2013 is partly allowed, in the above terms.
21. Let lower court records be transmitted to the court concerned, forthwith.
(Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated-5th February, 2020 Sharda/S.B. NAFR