Balkaran Uraon v. Years

5. Map was prepared vide Ex.-P/10. The deceased was firstly referred to the CHC, Patna and thereafter referred to the District Hospital where he was admitted, however, he died on the same day at about 3 pm vide Ex.-P/23. Merg was registered and on the recommendations of the Panchas, the dead body was sent for postmortem examination 4 in order to ascertain the cause of death. The postmortem was conducted on the dead body of the deceased by Dr. G.S. Paikra (PW- 14), who gave his report vide Ex.-P/24 wherein he opined that the cause of death is due to cardio respiratory arrest due to head injury and the death is homicidal in nature. Thereafter, both the appellants were taken into custody and pursuant to the memorandum statement of appellant Balkaran spade was recovered, which was sent for examination to the District Hospital, but no blood was found on it vide report Ex.-P/8. Similarly pursuant to the memorandum statement of appellant Karam, bamboo stick was seized and the same was also sent for examination to the District Hospital wherein no blood was found.

6. After due investigation, the appellants were charge sheeted for the offences mentioned in the opening paragraph of this judgment. Thereafter, the case was committed to the Court of Sessions. The accused-appellants abjured their guilt and entered into defence.

7. The prosecution in order to prove its case examined as many as 16 witnesses and exhibited 28 documents, whereas the accused- appellants in support of their defence examined 02 witnesses, namely, Manbodh (DW-1) and Phool Bai (DW-2) and exhibited 16 documents.

8. The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to convict the appellants for offences as mentioned herein-above, against which this appeal has 5 been preferred questioning the impugned judgment of conviction and order of sentence.

9. Learned counsel for the appellants would submit that eyewitnesses namely, Rajaram (PW-4), Ashish Tirki (PW-6) and Meera (PW-7) are relative witnesses and, therefore, their evidence cannot be relied upon. Though spade has been recovered from appellant Balkaran pursuant to his disclosure statement, but it has not been proved beyond reasonable doubt, as no blood was found on the spade and, therefore, the same cannot be relied upon as weapon of offence and it cannot be said that the spade was actually used for commission of offence. Furthermore, as against Dular Sai (deceased), a revenue dispute was pending consideration pursuant to the order of Tehsildar, which was in favour of deceased Dular Sai and a civil suit was also pending consideration with regard to the suit land and, therefore, the appellants have been falsely implicated. At the most, as against the appellant No.1 – Balkaran, offence would fall within the purview of Exception 4 to Section 300 of IPC, and, as such, it is a fit case where the conviction of appellant No.1- Balkaran can be converted/altered to an offence under Section 304 (Part-II) of IPC. So far as appellant No.2 – Karam Sai is concerned, eyewitnesses namely, Rajaram (PW- 4), Ashish Tirki (PW-6) and Meera (PW-7), in their evidence have not attributed any overt act against this appellant, therefore, conviction imposed on this appellant with the aid of Section 34 of the IPC is also not proved. Thus, the conviction imposed on the appellants under 6 Sections 302 and 323/34 of the IPC is liable to be set aside.

10.Per contra, learned State Counsel would support the impugned judgment on submission that three eyewitnesses namely, Rajaram (PW-4), Ashish Tirki (PW-6) and Meera (PW-7) have clearly stated about the role of the appellants in crime in question and their evidence inspire confidence of the Court. Furthermore, spade and stick have been recovered and proved beyond all reasonable doubt, though the FSL report is negative. Therefore, the Appeal deserves to be dismissed.

11.We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

12.The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has answered in affirmative by taking into consideration the oral and documentary evidence available on record, particularly considering the postmortem report (Ex.-P/24) which is duly proved by the evidence of Dr. G.S. Paikra (PW-14), we are of the considered opinion that the learned trial Court is justified in holding that the death of the deceased is homicidal in nature and the same is correct finding of fact based on evidence and the same is neither perverse nor contrary to the record. We accordingly affirm the said finding.

13.Now the next question would be whether the accused/appellants 7 herein are perpetrators of the crime in question?

14.We shall take the case of the appellants No.1 & 2 one by one. So far as appellant No.1 – Balkaran Uraon is concerned, (PW-4) Rajaram, son of the deceased; (PW-7) Meera, daughter of the deceased and (PW-6) Ashish Tirki have stated in their evidence that though the appellant No.1 assaulted with spade in the back portion of the head of the deceased by which he suffered injuries, as a result he fell down and he was taken to the hospital where he succumbed to the injuries, however, nothing has been brought on record in their lengthy cross- examination to hold that they have exaggerated the incident. Furthermore, from the memorandum statement of appellant No.1, spade has been recovered, however, no blood stain was found on it, but lacerated wound was present over left leg 2” above ankle joint in the size of 2cm x 2cm, bone deep; abrasion was also present over middle interior aspect of the left thigh in the size of 2cm x 1 cm oblique; lacerated wound was present over right lateral aspect of knee in the size of 2 cm x 2 cm muscle deep and as per the opinion of the doctor, the injury over the head may be caused by hard, heavy and blunt object and other injuries may be caused by hard and blunt object. In that view of the matter, we hold that so far as appellant No.1 is concerned, he has caused spade blow to the deceased Dular Sai, as a result of which he died.

15.The aforesaid finding brings us to the next question for consideration, 8 which is, whether the trial Court has rightly convicted the appellant No.1- Balkaran for offence under Section 302 of IPC or his case is covered with Exception 4 of Section 300 of IPC vis-a-vis culpable homicide not amounting to murder and, thus, his conviction can be converted to Section 304 Part II of IPC, as contended by learned counsel for the appellants?

16. The Supreme Court in the matter of Sukhbir Singh v. State of Haryana1 has observed as under:- “21. Keeping in view the facts and circumstances of the case, we are of the opinion that in the absence of the existence of common object Sukhbir Singh is proved to have committed the offence of culpable homicide without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and did not act in a cruel or unusual manner and his case is covered by Exception 4 of Section 300 IPC which is punishable under Section 304 (Part I) IPC. The finding of the courts below holding the aforesaid appellant guilty of offence of murder punishable under Section 302 IPC is set aside and he is held guilty for the commission of offence of culpable homicide not amounting to murder punishable under Section 304 (Part I) IPC and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5000. In default of payment of fine, he shall undergo further rigorous imprisonment for one year.”

17. The Supreme Court in the matter of Gurmukh Singh v. State of Haryana2 has laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the accused with reference to Section 302 or Section 304 Part II of IPC, which