Jharkhand High Court
Dhurwa (Mpudana) vs The State Of Tharkhand Oo Despondent on 25 February, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Criminal Appellate Jurisdiction) Criminal Appeal (DB) No, 248 of 2013 eeeone ff a 22.07, 28 xo; x . 7 i 20} 2 passed Ay ihe learned Jf : 2 > 3g y # convichon dated S073 ard the order of sentence Ff OBEN STE > | ie Rane ba fy Sessions ES 2 AIS James Rerketta, son of late Patras Kerketta, resident of Chand, PO and PS Dhurwa (Mpudana), District- Ranchi woe Appellant Versus The State of Tharkhand oo despondent iHeard through VC. on 28.02 20214 PRESENT | See SS ee Per Shree Chandrashekhar i The sole appellant was put on trial on the charge of committing murder of Mativas Kerketta, his brother, In Sessions - iris al. No. 341 of 2010, James Kerketta has been canvicted and sentenced to RI fe of life and a fine of Rs. 5,000". under section 302 of the Indian Penal Code. 2 Dhorwa (1) PS Case Na. 25 of 2010 was lodged against the appellant on U7.02.2010 under section 302 of the Indian Penal Code. The informant of this case is daughter of the deceased. In her fardbevan which was recorded at O9:15 AM on 07.02.2010 near her house, Ashrifa Kerketta has stated that last night her father and two sisters were sicepimg in the house. At about midnight she woke up on hearing quare! between her uncle James Kerketta and his wife, her aunt was crying loudly. Both the sisters and her father tried to intervene and her father who was drunk staried scolding fis brother, whereupon her unele threatened them brandishing a sword in his hand. So, she escaped towards back of the house and her father ran away to the cast af the house. However, her uncle chased her father and inflicted sword injuries frorn the back. On hearing Aula the villagers came fe Bueal (DSP Ne S48 ag SEES there but by that time her father had died. The informant has allezed that her father had a money dispute with his brother regarding sale of an ancestral land and previously also her uncle had committed morpy with her father, > During the investigation, confes sional statement of James Kerketta Was recorded by the | nvestigating Officer. In his disclasure, James Kerketts stated that he could recover the sw ord from a place in the back of his house where if was concsaled, 3, DOr Vinay Kumar who conducted the postmortem examination has found sharp cut injuries on the forehead, back of the chest and front of the chest. There were one deep bone out chop wound on the occipital scalp and one stab wound on the back of the chest. Jn the opinion af the doctor, the injuries were antemortem jn nature and caused: b heavy sharp cutting weapon weapons, After the fny estigalion, a charge-sheet "Was submitted ainst James Kerketta for commi iting the oflence under section 302 of the ae Indian Penal Code. In the trial, the prosecution has examined elehy WHTESSeN GL ows tof whom Pwo. Asbrita Kerketta and PW?- Binite are daughters of the deceased. pw and PWS are seizure witnesses and PW and PW5 are inquest witnesses.
4, The learned Judicial Commissioner] V, Ranchi has held thar daughters of the deceased have seen the aecused che asin 18 their father and j ig ig quite possible that 'one can see the incident while hiding behind a wall of the house. The learned J fudge has further held that recovery of | uurder weapon at the instance of the accused was proved by PW? and PWS, and:
ho explanation was offered by the accused to the incriminating circumstances when he Was examined under section 313 of the Cade of Crominal Procedure.
5, In the Judement under challenge, the learned ina Judge' has discussed the prosecution evidence jn t the following manner:
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6. In Sessions Trial No. 34 of 2010, the appellar x was convicts al for committing murder of his brother.
2. PW and PW3 who are the daughters of Matiyas Kerketta ars projected by the prosecution as evewitn esses. At the time of their they were aged between [8-20 years and from the materials on record we gather that they were unmarried. They have deposed in the Court that in the intervening night of 06/07. 02.2010 they were sleeping In the house. Being the unmarried daughters, there is nothing tnusual or unnatare ral about their nT the house tree Meir presen ce yee i the house of their father and, i fac reat m the night was not challenged by the de fence during the tral. They are campetent witnesses whe can tell the Court what really happened in the fateful night. PW2 has stated that it was about 12:00 midnight wher her emole chased them threatening with a sword. She and her sister went behind the house and her father ran away. Her uncle assaulied her father with sward pee ne a7 a re yew "4 sehind and her father died on the spot. An information about the occurrence was given to the police by the chowkidar and next day morming that around 12-00 -12:30 AM in the intervening night of 06/0? G2 2010 on hearing Audia when she came out from the house with her sister they frand that her unele was fighting with her father. Her uncle who was carrying 4 sword chased them and they hid themselves behind the house, but after i some chase her father was assaulted and ki:
Hed by her uncle. She has further "fs Crlasaal Spgeal (28) Ne. AS uf 287s stated that the villagers came there, apprehended her uncle and the next day morning when the police came her statement was recorded. She has affirmed that the statement of her sister was also recorded by the police ~ she is a signatory to the furdbevan of her sister. S. Ms. Neetu Singh, the learned counsel for the appellant would subrdt that PW2 and FW3 are not the evewltnesses; there are serious inconsistencies in their testirnony and, therefere, an the basis of their evidence the appellant carmot be convicted for murder. g, We find that In the Awubever PW2 has stated about a quarrel between the appellant and his wife and on hearing noise of marpr she, her sister and father tried to intervens, however, athe € ourt she has not stated anything about the aforesaid background of the > pase PW '9 has : also not sad anything in the Court about a quarrel between her | uncle and aunt in the midnight of 06/07.02,.2010. Her evidence is at variance with the story narrated by her sister inasmuch as she has quipped about her uncle guatreling with her father. Even then, we are inclined to accept the evidence of PW2 and PW3 primarily for the reason that their presence inthe house at the time of the occurrence is not challenged bya the defence. We further find that the Inconsistency in the examination-in-chief of PW3 was explained oy ber later in ber evidence. In the sess examina bt defence, U was elicited from her that her uncle was: fg Auing With his wife and on he SALT she woke up, and along with her sister and father had tried { intervene. The prosecution story narrated by PW2 and PW2 has 8 intrinsic truthfulness and their statement in the cross-examination that both brothers share a common courtyard lends support to their claim that in the ni found their uncle fighting with his wife and when they tried to interrupt the quarreling couple the appellant chased them, An important feature about their testimony is that the defence hag not cross-examined them on many important aspects of the prosecution case. The cross-examination oP PWS was casual ~ it is confined only to the dispute between both brothers regarding partition of land. PW2 and PW3 both stuck to thelr grounds and nothing could be elicited in their cross-examinaiion so as to disoredit thern. They are reliable and trustworthy witnesses and there is na reason why the trial Judge could not have acted upon their evidence. PW2 and PWS have & Cripdnaé Anpen? (DH) No 289 of 3 tendered such evidence which is sufficient to hold that the appellant has agsaulted their father with a sword, Even then, to meet the argument of the learned counsel fer the appellant that these witnesses are not eyewitnesses, s for a moment, we would assume that these witnesses may not have seen the entire incident, but in the absence of any intervening circumstance the evidence of PW2 and PW3 must be accepted that the appellant has assaulted their father with a sword. Ht was midnight and they have seen the assault "pan their father fram a distance and that was the reason they have stated a nothing about injuries on specific parts of the body.
10, The confessional statement of the appellant was proved during the trial and the prosecution has sought refuge to. gee tion 2? of the Indian svidence Act with the help of recovery of a blood-stained sword at the instance of the appellant. PWS, PW5.8 and PW6 have stated in the Court that James Kerketta was apprehended by the villagers and handed: ay er to the police. PWS and PW6 have also stated that on the confessional statement of James Rerketla a sword was recovered by the police. The sword was produced and marked as material Exhihit-1 during the trial. PW? has stated that the sword was blood-stained, however, it was net sealed. In section 2 of the Indian Evidence Act an exception to sections oe and 26 has been carved out Section eT of the Indian Evidence Ast ig. based 'onthe doctrine of confirmation that i iF any fact is discovered ina search made on the strength of any information abtamed from a prisoner such discovery is a guarantee that the information supplied by the prisoner is true. The prosecution has proved confessional statement of the appellant and recovery of the crime veapon at his pointing.
Yh, In "Suresh Chandra Bahri vx State of Bihar" £885 Supe 7} aCe SU the Hon'ble Supremé © 'ourt has observed as under:
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i ap made x te tae any Cebningl Loves? (RK) No, Bed Oren i. In our opinion, corn iplicity of the appellant in caus fig inpuries to Matiyas Kerketta is firmly proved from the aforesaid evidences laid by the osecution, 3, Ms. Neetu Singh, the learned counsel for the appellant has next contended that looking at the time and manner of the occurrence if cannot p92 cuncluded that conviction of the appellant for murder is proper id, Ms. Neetu Singh, the learmed counsel for the appellant has relied on the decision in "Agony Hang Subba v. State of Sikkim" (201 2} Crile' 122; "Ledu Ram vo Stare oF OG." GUIS) 4 COL? 637, and: 'Laxmidhar Naik v. State of Orissa" (2008) Suptri Cutl.T S80. to cantend that the appellant is Hable to be convicted for culpable homicide not amounting to murder, 3 is, Whether act of an accused amounts to "murder" or "culpable homicide not amounting to murder" is examined in the facts and circumstances of the case. The different clauses of section 300 of the Indian Ponal Code and the statutory illustrations appended therewith make it more than clear that an unintentional act which was committed without premeditation or design may also constitute the offence of murder, A case of culpable homicide not amounting to murder must necessarily be cavered under one of the five exceptions under sett ion. 300 of the Indian enal Code and-for arriving at a decision whether act of the accused falls under one or the other exceptions the Court is required to examine and exclude applicability of the four clauses of the principal provision. 16, The circumstances in the case indicate that provoked by uervention of his drunken brother the ; appellant lost selfcontral, The incident has occurred in the midnight and it is not the prosecution evidence nS that the place where Matiyas Kerketta was assaulted was a well-lit place A Ley quarrel between the appellant and his wife caused such nolse in the mi idnight that the family of the brother of the appellant woke up. Gn seeing quarrel between husband and wife, it was guite natural thet the brother and other family members would try to stop the fight and when they tried to intervene the appellant threatened them with a sword. It is the evidence of P V2 and PW3 that the appellant chased them with a sword and assaulted their father from behind, Tt is common knowledge that a fight between hushand and Decad Cristea' 4 geod (RS) Ne 329 gf BONS wife is generally an emotional fight ans, that too, when they were found quarreling in the midnight it can be safely inferred that the husband was quite angry ~ the wife was found crying loudly. In the aforesaid seenaria, when a third persan intervenes such ifervention may infuriate the person and that appears what had happened in the present case. At that moment he had no animus towards his brother and from narration of the aoaurrence we Find it difficult to infer that any thought af killme his brother migi occurred to the appellant.
yy as UO BP Page ove Space tere -ie coadinn PS aey we eresy ties seg y Ag aft SOS ry, in "Helmes vo Otrector of Public Frossoutions" 2846 AC 388 S siurder f SRIRSI SR ATES Sey.
{ The appellant threatened and chased three persons and, xD therefore, an intention to cause death of one person carmet be inferred. Fram @ prosecution evidence, we find that all this happened so quick and fast that any possibility of premeditation can be easily ruled out, and art angry person who has mounted assault from behind cannot be said to have intended to cause death It was a sudden pro. Javation and the appellant who WHS engaged in a passionate fight with his wife lost his self-control and while deprived of the power of self-contro! by grave and sudden provocation assaulted his brother. We have also kept in mind that the provocation was not self inflicted and under Exception-1 to section 300 of the Indian Penal Code the number of Injuries are not material.
19, In view of the afiressid discussions, we hold that the q prosecution has failed te establish that the appellant has committed offence under section 307 of the Indian Penal Code and, accordingly hive anviction in Sessions Trial Na. 341 ¢ P20 1G for committing murder of his brother is et-aside. The injuries caused by the appellant were grievous in nature and likely to cause death and, therefore, we hold that the appellant is Hable to be convioted and sertenesd to RI for ten years under section 304 Part-i of the
3 Uviminal deves} (OR) By, 38 af DOPE indian Penal Code.
20. Accordingly, the judgment of conviction under section 302 of the Indian Penal Code dated 22.01.2013 and the order of sentence of RI for lide and fine of Rs. 3,000/- against the appellant, namely, James Kerketta dated 24.01 2013 passed by the learned Judicial Commissioner-TV, Ranchi in Sessions Trial No. 34] of 2010 are set-aside, el, The appellant, namely, James Kerketta is convicted 2 sentenced to RI for 10 years under section 304 Part] of the Indian Penal Code.
en Mr Abhay Kumar Tiwari, the learned APP states that the appellant, namely, James Kerketia who has 'ved more than fourteen years of sentence, with remission, 18 in custody, hy
23. Accardingly, the appellant, namely, James Ker 'ketta shall be set iy free forthwith, if not wanted In connestion to any other case al (OB) No. 249 of 2O13 fs partly
24. In the result, Criminal Apre
-allowed, in the above terms,
23. Let lower Court records be transmitted to the Court concerned, forthwith.
2b, Let a copy of the Judgment be transrr Uitte xi to the Court concerned: through E AX.
Sagi _ (Shree . Chandrashekbar, d.} Sd/-
PRatnaker Bhengrs J) Cau, Ranchi Pf aeNAPR