Surai Hansda, Son of Guru Charan Hansda, Resident of Village – Amchuria, P.O. + v. P R E S E N T HON’BLE
Case Details
Criminal Appeal (D.B.) No. 59 of 2017 [Against the Judgment of conviction dated 18.08.2016 and Order of sentence dated 20.08.2016, passed by learned District & Additional Sessions Judge, Ghatshila, in Sessions Trial No.128 of 2016] Surai Hansda, Son of Guru Charan Hansda, Resident of Village – Amchuria, P.O. + P.S. – Galudih, District – East Singhbhum. The State of Jharkhand … … Respondent … … Appellant Versus P R E S E N T HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA ….. For the Appellant For the Respondent : Mr. Shashank Kumar, Advocate. Mr. Suman Tripathy, Advocate. : Mrs. Priya Shrestha, Spl.P.P. ….. JUDGMENT C.A.V. on 11.09.2024 Pronounced on 18.09.2024 Per Pradeep Kumar Srivastava, J. 1. Heard learned counsel for the parties. 2. Above named sole appellant has preferred this criminal appeal challenging his conviction and sentence dated 18.08.2016 / 20.08.2016 passed by learned District & Additional Sessions Judge, Ghatshila in Sessions Trial No. 128 of 2016, arising out of Galudih P.S. Case No.39 of 2015 (G.R. Case No.524 of 2015) registered under Section 302 of the Indian Penal Code, whereby and whereunder, the appellant has been held guilty for the offence under Section 302 of the I.P.C. and sentenced to undergo rigorous imprisonment for life for the Page 1 of 24 offence under Section 302 of the I.P.C. along with fine of Rs. 10,000/- with default stipulation. FACTUAL MATRIX 3. The prosecution story as unfolded in the F.I.R. lodged on the basis of fardbeyan (Exhibit-1/1) of Sulochna Hansda (P.W.-1), wife of the deceased recorded by S.I. Kuldeep Ram (P.W.-8), the then Officer-in-Charge, Galudih P.S. on 25.12.2015 at about 00.05 hours is that her husband Mangal Hansda (deceased) was the sole issue of his parents who died in his childhood, then his cousin-in-law (Bhaisur) Surai Hansda (accused) grabbed his share in the property and in this regard, there was constant quarrel between the deceased and the accused. It is alleged that on 25.12.2015 at about 7:00 PM her husband Mangal Hansda went to the house of the accused and was demanding his house-hold articles of old house and she was also present there. Meanwhile, Surai Hansda (accused) dragged her husband inside the house and also threatened the informant to kill her. The informant started screaming and upon this, the local villagers Bhado Hansda (P.W.-5) and Lalmohan Hansda (P.W.- 3) arrived and opened the door and found dead body of Mangal Hansda lying under pool of blood sustained Page 2 of 24 head injury in the house of Surai Hansda. One blood- stained iron phookani (pipe) was also found on earth.
Facts
4. On the basis of above information, FIR was registered against the accused for the offence under Section 302 of the I.P.C. and charge of investigation of the case was taken up by S.I. Kuldeep Ram (P.W.-8), who has recorded the re-statement of the informant, inspected the place of occurrence, prepared inquest report (Exhibit-2/1), recorded statement of Bhado Hansda (P.W.-5), Lalmohan Hansda (P.W.-3), Gajo Tudu (P.W.- 2), Chaitan Soren (P.W.-7) and also seized blood- stained iron phookani lying on the earth along with blood-stained soil and prepared seizure list (Exhibit- 4/2). He also arrested accused, seized his blood- stained cloths and prepared seizure list (Exhibit-3/2). The I.O. has also recorded the statement of P.W.-6 Samir Das, who got the post-mortem examination report of the deceased and sent the seized articles to FSL, Ranchi, for chemical examination and after completion of the investigation, found sufficient evidence against the accused and submitted charge sheet on 31.01.2016. 5. The case was committed to the court of Sessions and in due course, the case was transferred to the court Page 3 of 24 of learned Additional Sessions Judge, Ghatshila for trial. 6. The charge was framed against the accused, to which, he pleaded not guilty and claimed to be tried. 7. In course of trial, altogether nine witnesses were examined by the prosecution. P.W.-1 P.W.-2 P.W.-3 P.W.-4 P.W.-5 : : : : : Sulochana Hansda. Gajo Tudu. Lal Mohan Hansda. Sunil Soren. Bhado Hansda. P.W.-6 : Samir Das. P.W.-7 P.W.-8 P.W.-9 : : : Chaitan Soren. Kuldeep Ram (I.O.). Dr. Upendra Prasad. Apart from oral evidence of ocular witnesses, following documentary evidences were also adduced. Exhibit-1 : Signature of informant on Exhibit-1/1 Exhibit-2 : : fardbeyan. Fardbeyan. Signature of Gajo Tudu on the carbon copy of inquest report. Exhibit-3 & 3/1 : Signatures of Gajo Tudu and Sunil Soren on the seizure list of clothes. Page 4 of 24 Exhibit-3/2 : Seizure list of the cloth of the accused. Exhibit-4 & 4/1 : Signature of the witnesses on the seizure list of blood-stained soil and the weapon of assault. Exhibit-4/2 : Seizure list of blood- Exhibit-5 Exhibit-6 Exhibit-7 stained soil and phookani. : : : Formal F.I.R. Post-mortem report. FSL Report No. 99/2016. 8. The case of defence is plea of innocence, false implication and denial from occurrence. However, no oral or documentary evidence has been adduced by the defence. 9. The learned trial court, after appreciating the oral as well as documentary evidence led by the prosecution and all other attending circumstances came to the conclusion that the prosecution has been able to prove the charge levelled against the accused beyond all reasonable doubt and held the accused guilty for causing murder of Mandal Hansda on the fateful night and awarded sentence to the accused / appellant as stated above. Page 5 of 24 10. Learned counsel for the appellant has submitted that except P.W.-1, wife of the deceased, none of the witnesses have claimed to see the occurrence, rather they have arrived at the place of occurrence and have only saw the dead body of the deceased. 11. Admittedly, there was dispute about share of property raised at the instance of deceased himself, who have alleged to have gone to the house of the present appellant, raised hot talk and in the course of scuffle, he was given single blow by a phookani (iron pipe), which is used in the village for inflaming mud stove that cannot be said to be a lethal weapon for the offence committed in this case. There was no pre-meditation on the part of the appellant to cause any particular injury to the deceased with intention to cause his death, rather the incident has happened in sudden manner. 12. The appellant is in judicial custody since from the inception of the case i.e. since the year 2015 to up till now and had undergone around 09 years custody and has been sufficiently punished. 13. Considering the genesis and manner of occurrence and the single blow injury caused by an iron pipe, which was used as phookani and also the fact that the Doctor, who conducted autopsy on the dead body of the Page 6 of 24 deceased has opined that the death was caused due to injury No. 1, but has not opined that the said injury was sufficient in the ordinary course of nature to cause death, the conviction of the appellant is fit to be altered for the offence under Section 304 Part-II of I.P.C. and accordingly, the sentence may also be reduced suitably to the facts and circumstances of the case. 14. Per contra, learned Special Public Prosecutor appearing for the State has vehemently refuted the aforesaid contentions raised on behalf of the appellant and submitted that there is direct and specific allegation against the appellant for giving heavy blow by iron pipe on the head of the deceased, which is the sole cause of his death. The blood stained phookani was seized and sent the same for FSL, Ranchi along with blood-stained clothes of the deceased and it was found that the deceased was assaulted by the said blood- stained iron rod, as the blood-stain of iron pipe was corresponding to the blood of the deceased. The dead body was also found in the house of the appellant who dragged the deceased into his house and after locking the door miserably assaulted him, resulting in his death instantaneously. The I.O. (P.W.-8) also arrived at the spot in the night itself and in presence of local villagers, the inquest report and seizure list were Page 7 of 24 prepared. Therefore, the learned trial court has very wisely and aptly has considered all aspects of the case and rightly arrived at conclusion that it was intentional murder of the deceased caused by appellant. The conviction and sentence of the appellant for the offence under Section 302 of the I.P.C. is wholly justified under law and there is no legal substance in the contention of the appellant that it was caused without pre-meditation and without any intention to cause death of the deceased, so as to attract the offence under Section 304 of the I.P.C. Accordingly, this appeal has no merits and is fit to be dismissed. 15. We have perused the record and the ocular testimony of the witnesses along with other materials available on record. Admittedly, the sole eye-witness of the occurrence is informant – cum – wife of the deceased Sulochna Hansda (P.W.-1). She has categorically deposed that on 24.12.2015 at about 7:30 PM her husband was standing in front of the house of accused Surai Hansda, who is cousin father-in-law of the informant. She has also admitted that her husband and Surai Hansda were in inimical terms due to land dispute. The accused has grabbed property of her father-in-law which fall in the share of her husband. She has also admitted that scuffle started between her Page 8 of 24 husband and the accused. In the meanwhile, accused dragged the deceased inside his house, locked the door and threatened this witness to go back, otherwise she would be killed. She went to house of another cousin father-in-law Bhado Hansda (P.W.-5) and Lalmohan Hansda (P.W.-3). The door of the house of accused was violently dashed, then it was opened and all the witnesses saw that husband of this witness was lying on earth sustaining injuries on head and nearby there was a blood-stained iron phookni. Police also arrived in the village and her statement was recorded. P.W.-2 – Gajo Tudu also arrived after hearing hulla in the village and saw the dead body and inquest report was prepared in presence of this witness. P.W.-3 Lal Mohan Hansda also came to the place of occurrence hearing hulla of the informant and saw the dead body of the deceased lying in the house of the present accused and there was blood stained phookni nearby the dead body and there was head injury to the deceased. P.W.-4 Sunil Soren is also witness of inquest report. P.W.-5 Bhado Hansda is a local villager, who also arrived just after occurrence and reported the matter to village Choukidar and police was called upon. He Page 9 of 24 has further deposed that Mangal and Suraj @ Surai both are his nephew. He asked the accused as to why he has killed the deceased, then he replied that the deceased was attempting to press his neck. P.W.-6 Samir Das has been declared hostile. P.W.-7 Chaitan Soren also came to the place of occurrence after hearing hulla and saw the dead body of the deceased was lying in the house of the present accused. P.W.-8 Kuldeep Ram is the I.O. of the case, who arrived at place of occurrence about 1:00 AM and recorded fardbeyan of the informant, inspected the place of occurrence and also collected iron phookni, which was seized, inquest report was prepared in presence of witness Gajo Tudu and Chaitan Soren and he also seized blood stained phookni and soil and seizure list was prepared. Surai Hansda was arrested from his house. The seized materials were sent to FSL, Ranchi for chemical examination. After collecting sufficient evidence, he has submitted charge-sheet. P.W.-9 – Dr. Upendra Prasad, who on 25.12.2015 at about 3:30 PM has conducted autopsy on the dead body of the deceased Mangal Hansda, aged about 30 years, brought and identified by Chowkidar 4/13 Pirnabham Singh and Jagu Tudu. Rigor mortis Page 10 of 24 present. Both eyes closed. On opening eyes damaged. Mouth open. Teeth loose. External Injury : - Lacerated wound on scalp left side oblique 1 cm x 4 cm x bone deep. Bone fractured and brain matter seen from outside. Lacerated wound on right side of scalp 5 cm x 1 ‰ cm x bone deep. On dissection, chest was normal, lungs congested, heart normal and empty, abdominical wall normal. Stomach partially filled with undigested food, liver, kidney, spleen normal. The injuries were ante-mortem in nature caused by hard and blunt substance. The cause of death homorganic due to above injury. Time elapsed since death 16 hours. On cross-examination, this witness has stated that if there is moulted shape or stone then such type of injury is possible due to fall. The person died due to Injury No. 1. 16. From discussion of oral as well as documentary
Legal Reasoning
evidence available on record, there is no dispute that the deceased himself went to the house of the accused and raised a quarrel demanding his share in the landed property, and also started scuffling. Thereafter, present accused has given one blow with iron phookni, which was found responsible for his death and other injuries as indicated in the post-mortem report may be Page 11 of 24 caused due to fall. There is no material to show that at any time prior to occurrence, the accused had threatened the deceased to kill him if he again raise any demand of share in the landed property or for any other reason. On the date of occurrence also, during scuffle, there is no such utterances by the accused that he will kill the deceased to end the dispute forever. The occurrence has also happened in sudden manner and there was no repeated blow given by the appellant to the deceased on vital part of the body. 17. In the above circumstances, now the moot question arises as to whether the case comes under definition of “murder” or “culpable homicide not amounting to murder”. 18. Before we proceed to examine this aspect, it would be appropriate to examine the relevant provisions and the law settled on the point. What is murder:- Section 299 IPC defines “culpable homicide”, Section 300 defines “murder” carving out five Exceptions and Section 304 provides for “punishment for culpable homicide not amounting to murder,” as under:- “299. Culpable homicide.-Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is Page 12 of 24 likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. 300. Murder.—Except in the cases hereinafter 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 Page 13 of 24 person who gave the provocation or causes the death of 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 of such defence. Page 14 of 24 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. 304. Punishment for culpable homicide not amounting to murder.—Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten Page 15 of 24 years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.” 19. In Virsa Singh Vs State of Punjab A.I.R 1958 SC 465, Hon’ble Supreme Court laid down four elements to establish that an offence is a murder under Section 300 “thirdly” as under:- “12. To put it shortly, the prosecution must prove the following facts before it can bring a case under s. 300, 3rdly "; First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved; These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or Page 16 of 24 unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.” 20. In Anda and others vs. State of Rajasthan A.I.R. 1966 SC 148, (1965 SCC Online SC 46), Hon’ble Supreme Court explained Section 300 “thirdly” and laid down the law that the third clause views the matter from a general stand point. It speaks of an intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death. The emphasis here is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary way of nature and when this exists and death ensues and the causing of such injury is intended the offence is murder. Sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused, and sometimes both are Page 17 of 24 relevant. The determinant factor is the intentional injury which must be sufficient to cause death in the ordinary course of nature. If the intended injury cannot be said to be sufficient in the ordinary course of nature to cause death, that is to say, the probability of death is not so high, the offence does not fall within ‘murder’ but within culpable homicide not amounting to murder or something less. The sufficiency of an intentional injury to cause death in the ordinary way of nature is the gist of the clause irrespective of an intention to cause death. Here again, the exceptions may bring down the offence to culpable homicide not amounting to murder. 21. In the scheme of IPC, “culpable homicide” is the genus and “murder” is its specie. All murder is culpable homicide but not vice-versa. For the purpose of fixing punishment, proportionality to the gravity of generic offence, IPC practically recognizes three degrees of culpable homicide, firstly murder as defined in Section 300 IPC; secondly, culpable homicide punishable under Section 304 Part I and thirdly, lowest type of culpable homicide punishable under section 304 Part II. There is fine difference between the two parts of Section 304 of the IPC. Under the first Page 18 of 24 part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC. Culpable Homicide Not Amounting to Murder:- Explaining the provisions of Section 299 and Clauses secondly and thirdly of Section 300 IPC, Hon’ble Supreme Court held that in clause secondly, mens rea is the knowledge possessed by the offender regarding particular victim being in such a peculiar condition or state of health with internal harm caused to him is likely to be fatal notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in a normal health or condition. The intention to cause death is not the essential requirement of clause secondly but it is only the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom harm is caused. If assailants had no knowledge about the disease or special frailty of the Page 19 of 24 victim nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death the offence will not be murder even if the injury which caused the death was intentionally given. In Clause thirdly of Section 300 instead of the words “likely to cause death” used of the words “sufficient in the ordinary course of nature to cause death” shows the degree of probability of death resulting from the intended bodily injury. It is the probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. “Bodily injury sufficient in the ordinary course of nature to cause death” means that death will be the most probable result of the injury having regard to the ordinary course of nature. Clause fourthly of Section 300 is applicable where the knowledge of the offender as to the probability of death of a person in general as distinguished from a particular person being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability. 22. Thus, Part-I of Section 304 IPC is applicable if the act by which the death is caused is done (i) with the intention of causing death, or, (ii) with the intention of causing such bodily injury as is likely to cause death. Page 20 of 24 Part-II of Section 304 IPC is applicable if the act causing death is done (i) with the knowledge that it is likely to cause death, but without any intention to cause death, or (ii) with the knowledge to cause such bodily injury as is likely to cause death. The word “intention” as used in Part-I is absent in Part-II. Part- II shall be applicable where the intention as used in Part-I is absent but the act is done unintentionally by an accused with knowledge that his act is likely to cause death or the act is done unintentionally to cause such bodily injury as is likely to cause death. There is fine difference between the two parts of Section 304 of the IPC. Under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC. In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without Page 21 of 24 premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC. 23. Keeping in view the aforesaid principles of law as discussed at length and applying the same to the factual background of this case, it emerges that the appellant has given only one blow on head by iron phookani which is an instrument like iron pipe used in village for inflaming mud stove. Although, that injury has been proved fatal to the deceased, but the doctor, who has conducted autopsy on the dead body of the deceased, has not opined that the said injury was sufficient in the ordinary course of nature to cause death. It is tried that the intention for causing any offence is to be determined from the facts and circumstances of each case, such as the manner of assault, the weapon used, manner of blow etc. So far mandatory pre-determination of the appellant to furnish the deceased is altogether absent in this case. The ingredients of offence of murder as defined in Clause – firstly, secondly and thirdly does not appear to be applicable in the facts and circumstances of the Page 22 of 24 case, rather as per Clause 299 I.P.C. Clause-thirdly i.e. Whoever causes death by doing an act ……………………… or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Therefore, there is no necessity to trace out any exceptions appended to Section 300 of I.P.C. to be invoked in this case. 24. Upon close scrutiny of the materials and the facts and circumstances of the case proved by the prosecution, it is abundantly clearly that the offence committed by the appellant does not fall under the category of murder, but it is culpable homicide not amounting to murder punishable under Section 304 Part-II of I.P.C. 25. We have also noticed that the appellant is in judicial custody since the very inception of the case and since then 11 years, 10 months & 24 days have passed. In the circumstances, we deem fit that the appellant has been sufficiently punished for his guilt. 26. In view of the above discussions and reasons, this appeal is allowed and impugned judgment and order of conviction of the appellant for the offence under Section 302 of the I.P.C. is set aside and altered to offence under Section 304 Part-II of the I.P.C. Accordingly, the appellant is sentenced to Page 23 of 24 imprisonment already undergone and directed to be released forthwith, if not required in any other case. 27. We are also conscious about the grievances of the victim / wife of the deceased, who might have some children. She also requires to be adequately compensated and rehabilitated. Therefore, we direct the SDLSA, Ghatshila to identify the victim / dependents of the deceased in the case and provide them adequate compensation under the Jharkhand Victim Compensation Rules, 2016 or applicable Rules in force at present. The exercise of providing compensation to the victim / dependents of the deceased must be completed within three months from the date of this order. 28. Let a copy of this judgment along with trial court record be sent back to the court concerned and copy of judgment may also be sent to the SDLSA, Ghatshila for information and needful. (Rongon Mukhopadhyay, J.) (Pradeep Kumar Srivastava, J.) Jharkhand High Court, Ranchi Dated, the 18 t h September, 2024. Sunil /N.A.F.R. Page 24 of 24