Against The Judgment Of ... vs The State Of Jharkhand
2022 Latest Caselaw 4258 Jhar

                 Criminal Appeal (D.B.) No. 666 of 2012
    [Against the judgment of conviction and order of sentence dated
    07.05.2012 passed by Sri Ghanshyam Kumar Mallik, learned 1 st Addl.
    Sessions Judge, Singhbhum West at Chaibasa in Sessions Trial No. 74 of
    2007]
                                  ...........

    Pradhan Marla                                     ... ... Appellant
                                Versus
    The State of Jharkhand                          ... ... Respondent
                              ...........
    For the Appellant      : Mr. Binod Kumar Jha, Amicus Curiae
    For the State          : Mr. P.K. Appu, A.P.P.
                            PRESENT

HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE AMBUJ NATH ...........

C.A.V. on 13/09/2022 Pronounced on 18/10/2022

Heard Mr. Binod Kumar Jha, learned Amicus Curiae for the appellant and Mr. P.K. Appu, learned A.P.P. for the State.

2. This appeal is directed against the judgment of conviction and order of sentence dated 07.05.2012 passed by Sri Ghanshyam Kumar Mallik, learned 1st Addl. Sessions Judge, Singhbhum West at Chaibasa in Sessions Trial No. 74 of 2007, whereby and whereunder the appellant has been convicted for the offence u/s 302 of the IPC and has been sentenced to undergo R.I. for life.

3. The fardbeyan of Ladu Kui was recorded on 24.11.2006, to the effect that on 23.11.2006 her husband Motai Marla had gone to cut paddy in order to assist his brother Pradhan Marla (appellant). A dispute had cropped up between the brothers regarding partition of land. When both returned home they had consumed Haria. It has been alleged that at about 9:00 P.M. both had once again quarreled with respect to partition of land and Pradhan Marla had brought a dauli and struck the husband of the informant on neck, dragged him for 30 feet towards the courtyard and thereafter fled away. When the informant raised an alarm the villagers Bera Marla, Rajesh Marla, Gangaram Purty and others had assembled and had tried to take her husband to the hospital but he was already dead by then.

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Based on the aforesaid allegations Goilkera P.S. Case No. 28/2006 was instituted against Pradhan Marla for the offence punishable u/s 302 of the IPC. On conclusion of investigation charge-sheet was submitted u/s 302 of the IPC and after cognizance was taken the case was committed to the Court of Sessions where it was registered as Sessions Trial No. 74 of 2007. Charge was framed against the accused for the offence punishable u/s 302 of the IPC which was read over and explained to the accused in Hindi to which he pleaded not guilty and claimed to be tried.

4. The prosecution has examined as many as eight witnesses in support of its case.

5. P.W.1 (Dr. Sudama Prasad) was posted as a Medical Officer at Sadar Hospital, Chaibasa and on 25.11.2006 he had conducted the autopsy on the dead body of Motai Marla and had found the following antemortem injuries:

(i) External findings- Incised wound 4" x 2½ x deep to bone with blood clot on the front of the neck towards left side.

(ii) Internal finding- Head NAD, neck- NAD, Thorax - heart, both chamber empty, lungs- pale.

Abdomen - All the visual organs intact & pale. Stomach- Contained digested food material.

6. The cause of death was opined to be due to hemorrhage and shock due to sharp cutting object. Injury no. (i) may be caused by sharp cutting weapon like dauli. He has proved the postmortem report which has been marked as Exhibit-1.

7. P.W.2 (Rajesh Marla) has deposed that the incident had occurred on 23.11.2006 at about 8:00-9:00 P.M. He was at his house. On the next day, he came to know that Motai Marla has been murdered. The nephew of Motai Marla had disclosed that Pradhan Marla has committed the murder of his uncle. He has identified his signature as well as the signature of Ganga Ram Munda in the inquest report which have been proved and marked as Exhibit-2 and 2/1 respectively. The Police had also seized a

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dauli for which a seizure list was prepared and he has identified his signature and the signature of Ganga Ram Munda on the seizure list which have been marked as Exhibit-3 and 3/1 respectively.

In cross-examination, he has deposed that the distance between his house and that of Motai Marla is about 500 meters.

8. P.W.3 (Jaipal Marla) did not support the case of the prosecution and was accordingly declared hostile.

9. P.W.4 (Dushru Purty) has deposed that Motai Marla was murdered by Pradhan Marla. He had gone to see the dead body after the Police had come.

10. P.W.5 (Behra Marla) did not support the case of the prosecution and was also declared hostile by the prosecution.

11. P.W.6 (Prem Chandra Hansda) has deposed that on 24.11.2006 he had recorded the fardbeyan of Ladu Kui. He has identified his endorsement in the fardbeyan which has been marked as Exhibit-5. He has proved his handwriting and signature over the inquest report which has been marked as Exhibit-6 with objection. He has also identified his signature and handwriting upon the seizure list of seized dauli which has been marked as Exhibit-7. He had recorded the restatement of the informant and had also inspected the place of occurrence. The first place of occurrence is the mud tiled house of Pradhan Marla where the assault was committed with a dauli while the second place of occurrence is the courtyard of Motai Marla where he was dragged and left. He had recorded the statement of Bera Marla, Rajesh Marla and Gangaram Purty. He had thereafter arrested Pradhan Marla and had taken his defence statement. He has proved the formal First Information Report which has been marked as Exhibit-

8. He had also recorded the statements of Jaywant Singh and Dashru Purty. The blood soaked earth and the blood stained dauli were sent to the FSL, Ranchi. He had thereafter handed over the

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investigation to Sudhir Prasad Sahu.

The witness Jaipal Marla had disclosed before him that on 23.11.2006 there was a dispute between Motai Marla and Pradhan Marla regarding partition of land and when the quarrel stopped he had reached the place of occurrence and had seen Motai Marla lying dead in the courtyard with his neck cut. The informant Ladu Kui had stated before him that Pradhan Marla had committed assault upon Motai Marla with a dauli and dragged him towards the courtyard and left him there. Similar was the statement of Behra Marla given before him.

In cross-examination, he has deposed that he had not seized blood soaked earth from the first place of occurrence.

12. P.W.7 (Ladu Kui) is the informant who has deposed that the incident is of four years back when Pradhan Marla had committed the murder of her husband with a dauli. Both had a quarrel with respect to landed property. She had seen the assault. She has stated that Pradhan Marla had fled away after the assault.

In cross-examination, she has deposed that when the incident had occurred she was inside her house. Both had consumed Haria and were fully drunk. No one had come when she had raised alarm.

13. P.W.8 (Sudhir Prasad Sahu) had taken over the investigation from ASI, Prem Chandra Hansda. He had obtained the postmortem report. He had submitted charge-sheet against Pradhan Marla u/s 302 of the IPC and had also submitted the forensic report to the Court along with the supplementary case diary.

14. The statement of the accused was recorded u/s 313 Cr.P.C., in which, he has denied to commit the murder.

15. Mr. Binod Kumar Jha, learned Amicus Curiae for the appellant has submitted that there are no eye-witnesses to the occurrence. He has submitted that even P.W.7 has deposed that when the occurrence had taken place she was inside the house

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which rules out P.W.7 as being an eye-witness. Alternatively, he has argued that even if it is assumed that the assault was committed by the appellant with a dauli the same would at best attract an offence punishable u/s 304 of the IPC as there was no premeditation on part of the appellant in committing such assault.

16. Mr. P.K. Appu, learned A.P.P. has primarily relied upon the evidence of P.W.7 while submitting that the allegation of assault with a dauli against the appellant is corroborated by the postmortem report.

17. We have heard the rival submissions and have also perused the Lower Court Records.

18. The genesis of the occurrence is a land dispute between the appellant and the deceased who is his own brother. In the morning of 23.11.2006 while cutting paddy both the brothers had quarreled regarding partition of land. A temporary truce seems to have occurred which however was unsettled when at night after both the brothers had quarreled after having Haria the appellant in a fit of rage had committed assault upon his brother leading to his death.

19. The informant is P.W.7 and she is the only eye- witness to the occurrence though the same has been disputed by the learned counsel for the appellant. In her cross-examination though P.W.7 has deposed that she was inside the house when the assault had taken place but her evidence clearly suggest that there was no one present save and except herself as well as the warring brothers. The evidence of P.W.6 reveals that the houses of both the brothers are adjacent to each other. The prosecution, therefore, has been able to establish that the appellant had committed assault upon Motai Marla and the same resulted in his death.

20. We have to once again dissect the evidence of P.W.7 to validate as to whether the assault was premeditated or an act of sudden rage and passion.

21. In her fardbeyan P.W.7 has stated about a quarrel

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on the same day between the brothers regarding partition of land. In her evidence P.W.7 though has not deposed about the said fight but has stated that both the brothers had consumed Haria and were fully drunk. She has stated about a quarrel with respect to the land between the brothers. The evidence of P.W.7, therefore, reveals absence of any premeditation on the part of the appellant. A concoction of being fully inebriated and the dispute of partition of land became responsible for the sudden act of violence by the appellant upon his brother which snuffed out the life of his brother. When we traverse the postmortem report only one incised wound on the neck appears to have been detected which further vindicates the stand of the defence that the act of assault was not a premeditated one.

22. We therefore, on the basis of the discussions made above, modify the conviction of the appellant from Section 302 of the IPC to one u/s 304 Part-I of the IPC and accordingly sentence him to R.I. for 10 years.

23. The appellant is in custody since 25.11.2006. He has already served the modified sentence awarded to him by this Court and accordingly, he is directed to be immediately released, if not, wanted in any other case.

24. This appeal stands disposed off.

(Rongon Mukhopadhyay, J.)

(Ambuj Nath, J.) High Court of Jharkhand at Ranchi Dated, the 18th day of October, 2022.

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