Jharkhand High Court
Seral Mandi vs The State Of Jharkhand on 8 January, 2019
Equivalent citations: AIRONLINE 2019 JHA 9, 2019 (2) AJR 265
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, Kailash Prasad Deo
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Cr. Appeal (DB) No. 753 of 2014
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Against the judgment of conviction and order of sentence dated 13.08.2014 passed by the learned District and Sessions Judge-I, Ghatsila in S.T. No. 27 of 2014
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Seral Mandi --- --- Appellant
Versus
The State of Jharkhand --- --- Respondent
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For the Appellant: Mr. Mahesh Kr. Sinha, Advocate
For the State: Mr. Vinay Kr. Tiwary, A.P.P.
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Present
Hon'ble Mr. Justice Aparesh Kumar Singh
Hon'ble Mr. Justice Kailash Prasad Deo
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By Court: Heard learned counsel for the appellant and the learned A.P.P for the State.
2. Appellant stands convicted for the offence- under section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life with a fine of Rs. 2,000/- and in default whereof, to suffer simple imprisonment for six months, vide impugned judgment and order of sentence dated 13.08.2014 passed by the learned District and Sessions Judge-I, Ghatsila in S.T. No. 27 of 2014.
2. The prosecution was initiated on the basis of the fardbeyan of the son of the deceased Lakhan Mandi (PW-3). The fardbeyan was recorded at 14.00 hrs. on 18.11.2013 inter-alia alleging that a dispute in respect of land arose between his father and the accused Seral Mandi. In course of quarrel, the accused inflicted a blow by a wooden danda on the head of his father, as a result of which, he sustained injuries and started bleeding. Within ten minutes thereof, he died. The accused ran away from the place. It is further alleged that the accused was the nephew of the deceased and there was a land dispute between them from before. He accordingly requested for proper action.
3. Upon conclusion of the investigation and submission of charge sheet against the sole accused, cognizance was taken and the case was committed to the court of sessions. Charges were framed under section 302 of the Indian Penal Code and read over to him. The accused denied the occurrence and pleaded innocence.
4. During trial, on behalf of the prosecution, eleven witnesses were examined. PW-1 is Sumi Mandi, PW-2 is Lakhanchand Mandi, PW-3 is Lakhan Mandi, PW-4 is Jitendra Nath Tudu, PW-5 is Nabeen Chandra Mandi, PW-6 is Gopal Hansda, PW-7 is Dr. Upendra Prasad, PW-8 is Somai Mandi, PW-9 is Ramchandra Mandi, PW-10 is Shivcharan Hansda and PW-11 is Bishwanath Singh who is Investigating Officer of the case. Upon conclusion of the evidence 2 of the prosecution, material evidence was put to the accused under section 313 of the Cr. PC. He denied the occurrence. Learned Trial Court dealt with the testimony of the prosecution witnesses and found the widow Sumi Mandi (PW-
1) as an eyewitness to the occurrence. PW-3, the informant, PW-8 and PW-9 are the sons of the deceased, they are said to have got the knowledge of occurrence through their mother. They were hearsay witnesses, though they had reached the place of occurrence soon after the crime and had seen the dead body of their father with injury on the head.
5. PW-7 is the medical officer who conducted postmortem on the dead body of the deceased and proved the postmortem report. The postmortem was conducted on 19.11.2013 at 1.15 pm in which only one external injury was found on the body of the deceased i.e. lacerated wound on scalp 3"x ½ " on left side of frontal linear; no other injury was found on the body. On dissection, frontal bone of scalp blood was collected beneath meninges; congested blood was collected beneath meninges; brain matter was depressed. Rest of the internal organs - chest, lungs, heart, abdomen, stomach, liver, kidney and intestine - were found to be normal. In the opinion of the doctor, this injury was ante mortem in nature caused by hard and blunt substance. Cause of death was due to neurogenic hemorrhage shock due to above injury. Time elapsed since death is within 20-24 hours.
6. The Investigating Officer Bishwanath Singh was examined as PW-11. PW-2 is -another hearsay witness who reached the place of occurrence after hearing about it. He was told by PW-1, Widow of the deceased, about the assault by the accused on the uncle of PW-2 i.e. deceased with wooden danda on the head which led to his death. He also had deposed about the land dispute between the parties. PW-1 in her deposition, had categorically stated that the incident took place at 12.00 am and that she was present in her house at the time when due to measurement of the land, quarrel was taking place between the accused and her deceased husband. She tried to take away her husband to the house in order to separate them, but the accused took wooden danda from his house which was heavy and in sufficient breadth and thereafter, assaulted on the head of her husband, as a result of which, he died. She further deposed that there was land dispute between the parties. In her cross-examination, she also stated that the place of occurrence was adjacent to her house and she was present in her house. During the crime, daughter of the accused was also present. She also stated that the accused is the son of her brother-in-law. She categorically stated that blow by the wooden danda was inflicted on the head of her husband in her presence.
37. Learned court upon analysis of the evidence on record and thorough discussions of the ingredients of the offences of culpable homicide amounting to murder and not amounting to murder, arrived at a conclusion that the accused intended to inflict injury which was sufficient in the ordinary course of nature to cause death. PW-1, the widow of the deceased and eyewitness to the occurrence, had duly supported the prosecution case and the manner of assault on the head of her husband aged 62 years by a heavy danda by the accused which on corroboration on the opinion of the medical officer, was found to be sufficient in the ordinary course of nature to cause death. Cause of death was due to shock of neurogenic hemorrhage. Learned Trial Court therefore found subtle distinction between culpable homicide not amounting to murder and murder and held the accused guilty of murder of Jagan Mandi. The injury was on the vital part of the body and both direct and corroborative evidence nailed the guilt of the accused under section 302 of the Indian Penal Code. It held that prosecution had therefore been able to prove the charges beyond shadow of all reasonable doubts.
8. Learned counsel for the appellant has taken this court to the evidence of PW-1 in particular and other related witnesses such as three sons of the deceased (PWs 3, 8 and 9) who were hearsay witnesses as per their own statement as they had reached the place of occurrence after the incident. The statement of the widow, in particular, has been dealt with by the learned counsel for the appellant to create a doubt about her status as an eyewitness. He points out that PW-1 in the first paragraph of her statement, had categorically stated that that she was in her house at the time of occurrence. However, in her subsequent statement and in the cross-examination, she had tried to project herself as an eyewitness who was present at the time of occurrence which took place outside her house. From a reading of the statement of this witness also, it would be evident that there was a pre-existing land dispute between the accused and the deceased which was the reason for quarrel on the fateful day. He has further pointed out to certain statement of PW-1 at para-10 to show that her statements are inconsistent. At one place, she had stated that she was standing in front of the deceased, while at the other place, she states that she was standing by his side. Taking a cue further from the statement of PW-1 and medical witness (PW-7), he submits that the findings of guilt under section 302 of the IPC arrived at by the learned Trial Court is not proper in the eye of law. Even assuming the manner of assault explained by the prosecution, it did not lead to the inference that the accused intended to kill the deceased as there was no repetition of blows on the head or any other vital parts 4 of the body. At best, the injury was caused in the heat of moment without premeditation and upon a sudden quarrel. The accused had not taken any undue advantage or acted in a cruel or unusual manner. There was no time elapsed from the stage of quarrel to the infliction of injury by the accused and that the accused did not get any time to cool down and reflect and thereafter, cause fatal injury on the deceased. Had there been any intention to kill the deceased, there would have been a number of blows on the head or other vital parts of the body. As per the statement of the prosecution witnesses also, the land dispute was the basis of quarrel. The accused had not voluntarily provoked the deceased as an excuse to kill or harm him. As such, even on the weight of evidence adduced by the prosecution, the conviction could not have been recorded for culpable homicide amounting to murder. Sentence of rigorous imprisonment for life is therefore wholly excessive and unwarranted. Based on these submissions, learned counsel for the appellant prayed that the impugned judgment deserves to be set aside or in the alternative, conviction may be reduced to culpable homicide not amounting to murder.
9. Learned A.P.P for the State has strongly opposed the submissions made on behalf of the appellant. He submits that the ingredients of the offence have been duly established on the part of the prosecution through the prosecution witnesses. Time, manner of occurrence, the motive behind it and the nature of injury inflicted upon the deceased have been adequately proved beyond shadow of all reasonable doubts specifically through the testimony of the eyewitness, widow of the deceased (PW-1) corroborated by the medical witness (PW-7). Even one blow on the vital part of the body i.e. by the heavy wooden danda was sufficient in the ordinary course of nature to cause death. PW-1, the widow of the deceased, in her testimony, had clearly stated that the accused went to his house and brought a danda. He therefore got sufficient time to premeditate before committing the assault. It was therefore not in the heat of passion as a result of quarrel going on between the parties over a pre-existing land dispute. Prosecution has not been able to create a doubt about the presence of PW-1, a natural witness to the crime, at the place of occurrence as it was just adjacent to her house. The accused admittedly is the nephew of the deceased and there was no reason for false implication. The injury proved by the medical expert was on the scalp 3"x ½ " on the frontal bone which caused depression of brain matter and collection of blood beneath bone meninges. It was sufficient in the ordinary course of nature to cause death due to neurogenic hemorrhagic shock caused by the injury. Doctor found one such injury inflicted by the accused. The defence during course of cross-
5examination, had completely failed to discredit the testimony of the prosecution witnesses. The fardbeyan and FIR had also been proved. There is no time elapsed in the institution of fardbeyan at 14.00 hrs. just two hours after the time of occurrence and death of the deceased. The prosecution witness no. 1 is the widow of the deceased, an illiterate lady and no concoction can be shown in the manner in which she has testified the entire prosecution story. The FIR was registered by her son who came to know about the incident from his mother. All these statements reflect the natural course of conduct on the part of the prosecution witnesses which are not vulnerable to doubt the conviction imposed by the learned Trial Court on due consideration of the entire material evidence on record. Therefore, the impugned judgment does not deserve any interference in appeal, even on re-appreciation of evidence.
10. We have considered the submission of learned counsel for the parties and gone through the material evidence on record as also relied by them. Conviction for the charge of murder under Section 302 of the I.P.C has been recorded by the learned Trial Court based on the eye witness account of PW-1, widow of the deceased and the corroborative medical evidence of PW-7, the Doctor who conducted the Post Mortem examination. Rest of the prosecution witnesses, more particularly three sons of the deceased were not witness to the crime and reached the place of occurrence on hearing about it. The matter was reported to the Police immediately after the incidence and fardbeyan was recorded only after two hours of the incidence at 14.00 hrs. on 18.11.2013. We have carefully analyzed the material evidence of PW-1 read with corroborative evidence of PW-7, the Medical Officer. The testimony of PW-1, widow whose presence at the place of occurrence does not stand discredited by any cross examination, itself shows the following significant facts about the manner of the crime. She has duly stated that there was a land dispute between the deceased and his nephew, the accused. There was a quarrel on the fateful day at 12.00 a.m. due to measurement of land. She was present at the time of quarrel and tried to separate her husband from the accused who apparently were embroiled in quarrel. In those moments, the accused caught hold of wooden danda from his house without any waste of time and inflicted a single injury on the head of the deceased which became the cause of death. The husband of PW-1, deceased fell down on the impact of the injury and started bleeding and within 10 minutes is stated to have died. PW-1 does not assert any more blow or injury inflicted upon the deceased by the accused thereafter. The accused fled away after inflicting the only injury upon the deceased on his head. The existence of land dispute between the parties also stand 6 corroborated by the testimony of PW-3, informant, PW-9 another son of the deceased and PW-2 as well. PW-7, the Medical Officer who has proved the post mortem report found one lacerated wound on the scalp of 3"x ½ " on the frontal bone. All other internal organs like chest, heart, lungs, abdomen, stomach, liver, kidney and intestine have been found to be normal. Death was found to be the result of ante mortem injury by hard and blunt substance due to neurogenic and hemorrhagic shock.
11. From the analysis of the evidences of these prosecution witnesses, we find that the single assault by a wooden danda by the accused took place in the heat of passion during a sudden quarrel between the parties and the offender accused did not take undue advantage or act in any cruel or unusual manner. There was no time for premeditation in the sudden fight which grew up during course of quarrel between the parties. The appellant did not appear to bear an intention to kill the accused as there were no repetition of blows on the body of the deceased either on the head or any other vital parts of the body. In these circumstances, we are of the opinion that the facts of the case fit in the Exception 4 of Section 300 of the I.P.C. Section 300 together with Exceptions 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.
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."
12. Upon careful analysis of the material evidence on record and anxious consideration accorded to the grounds urged on behalf of the appellant, we are satisfied that the case of this appellant herein falls within Exception-4 to the offence of murder as defined under Section 300 of the IPC. Having held as above, we are of the considered opinion that interest of justice would be met if adequate sentence of seven years be imposed under Section 304 Part II of the Indian Penal Code upon the appellant.
13. For the reasons recorded herein above and the facts and circumstances discussed, we are unable to uphold the conviction of the appellant under Section 302 of the IPC. Accordingly, the conviction of the appellant under Section 302 of the I.P.C is set aside, so is the order of sentence of rigorous imprisonment for life. The appellant is convicted for culpable homicide not amounting to murder and sentenced to undergo rigorous imprisonment for seven years under section 304 Part-II of the Indian Penal Code. Period undergone shall be set off under Section 428 of the Cr. PC.
14. The appeal stands partly allowed.
(Aparesh Kumar Singh, J) (Kailash Prasad Deo, J) Jharkhand High Court, Ranchi Dated 08th January 2019 Ranjeet/