High Court
Case Details
Cr. Appeal No. 4 of 1992(R) Against the judgment and order of conviction and sentence dated 20th December, 1991, passed by Shri N.K. Prasad, District & Sessions Judge, Gumla, in Sessions Trial No. 18 of 1988. Koche Kumhar State of Jharkhand -------- Versus -------- … Appellant … Respondent
Legal Reasoning
For the Appellant: Mr. Krishna Shanker, Amicus Curiae For the State : Mr. Amaresh Kumar, A.P.P. --------- P R E S E N T HON’BLE MR. JUSTICE D.N. PATEL HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR. Oral order: Dated 9 Per D.N.Patel,J.: th April, 2013 1. The present appeal has been preferred against the judgment and order of conviction and sentence passed by the Sessions Judge, Gumla in Sessions Trial No. 18 of 1988. The learned trial court vide order dated 20th December, 1991 has convicted the present appellant for the offence of murder of the deceased and has punished him for life imprisonment and against this judgment and order of conviction, the present appeal has been preferred. 2. It is a case of the prosecution that on 21st October, 1986 at about 3.00 p.m., as per the F.I.R. lodged by P.W.2 i.e. the son of the deceased, the father of the informant was sitting with other inmates in his house. At that time his goat was grazing in the field and after sometimes, the accused came to the house of the informant and started quarreling with the deceased that his goat was grazing in his field and thereafter, he assaulted the deceased and gave a slap blow as a result of which the deceased fallen down and thereafter, this appellant gave fists and blows and slaps and thereafter, the deceased has expired. This was seen by the wife of the deceased as well as by the daughter of the deceased, who are P.W.1 and P.W.3. It is also stated by the this informant that P.W.1 is also injured by the assault of this appellant. Thereafter, the case was investigated, statement of witnesses were recorded and and charge-sheet was filed and the case was committed to the Sessions Court being Sessions Case No. 18 of 1988 and on the basis of the evidence given by P.W.1 to P.W.7, the learned trial court has convicted this appellant for the offence punishable under Section 302 of the Indian Penal Code for life imprisonment. Against this judgment, the present appeal has been preferred by the appellant. 2. 3. We have heard counsel for the appellant, who has mainly submitted that there are major omissions and contradictions in the depositions of the so called eye witnesses P.W.1 and P.W.3. Moreover, there is sudden fight between the appellant and the deceased. This is not premeditated action on the part of the appellant. No weapon has been used by the appellant. Only a slap was given and the Jivdhan Mahli had fallen down and thereafter again it is alleged that further slaps were given and the deceased expired. Looking to the post-mortem report there are only bruises on the body of the deceased. Neither any doctor nor the Investigation Officer has been examined and therefore, it is submitted by the counsel for the appellant that this is not a case of a murder, but, at the most a culpable homicide not attempting to murder. It is also submitted by the counsel for the appellant that the injuries of the P.W.1 has also not proved by the prosecution. In fact, the eye sight of P.W.1 was so poor that it is very difficult to become an eye witness of the incident. This aspect of the matter has not been properly appreciated by the learned trial court and therefore, the judgment and order of conviction and sentence, passed by the learned trial court, for the offence of murder of the deceased, deserves to be quashed and set aside. 4. We have heard counsel for the State, who has submitted that the case of the prosecution is based upon two eye witnesses, who are P.W.1 and P.W.3 and it is stated by both these witnesses that it is the present appellant who has given initially slap to Jivdhan Mahli, who had fell down immediately, further slaps and kicks were given by this appellant and therefore, the deceased has expired. The postmortem has been proved by P.W.7, who is a clerk of the Advocate and therefore, on the basis of the evidence on record no error has been committed by the learned trial court in convicting the present appellant for the offence of murder of the deceased and hence, the present appeal preferred by the appellant deserves to be dismissed. 5. Having heard counsel for both the sides and looking to the evidences on record, it appears that the incident has taken place on 21 st October, 1986 during broad day light in the house of the deceased. P.W.1 is the wife of the deceased, P.W.3 is daughter of the deceased. They have clearly stated before the learned trial court that the appellant came at the house of the deceased and started quarreling with the deceased that his goat was grazing in the field of the appellant. Thereafter, he gave slap to the deceased, who fallen down and thereafter, the appellant further given fists blows and slaps. 3. Looking to the evidences of P.W.1 and P.W.3, we have no reason to disbelieve these two eye witnesses. Looking to the cross examination nothing has come out in favour of the present appellant-accused. 6. So far as the manner of occurrence is concerned, it appears that as the appellant has given a slap blow, the deceased had fallen down and further fists and slaps were given by him, thus, this is a case of sudden fight. Moreover, this is not premeditated action on the part of the appellant. There was no weapon in the hand of the appellant much less sharp cutting weapon or any other instrument. Moreover, looking to the post-mortem, there are bruises on the body of the deceased as well as fracture of rib. Postmortem is referred by P.W.7, who has not acquaintance with the doctor. Looking to these evidences on record, the present case is not of a murder, but, culpable homicide not attempting to murder. Thus, the learned trial court has not properly appreciated the aforesaid aspect of the matter. 7. We hereby, punish the appellant for the offence punishable under Section 304 Part-II of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for 10 years. The judgment and order of conviction of the trial court is modified to the aforesaid extent. This appeal is partly allowed. Counsel for the appellant submitted that the appellant is in jail. (D.N. Patel, J) (Shree Chandrashekhar, J.) Jharkhand High Court, Ranchi Dated, the 9th April, 2013. VK/ N.A.F.R.