Jharkhand High Court

Durga Mahto vs The State Of Jharkhand on 27 September, 2022

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 (Criminal Appellate Jurisdiction)

                    Criminal Appeal (DB) No. 1577 of 2017

Durga Mahto, s/o Sadhu Mahto, r/o village Gurutoli, PO & PS Namkum,
District Ranchi.                                        .... Appellant

                                      Versus
The State of Jharkhand                                       ... Respondent
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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MR. JUSTICE RATNAKER BHENGRA

For the Appellant : Mr. Nagmani Tiwari, Advocate Mr. Gaurav Kumar Pandey, Advocate For the State : Ms. Nehala Sharmin, Spl. PP

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Order No.09/ Dated: 27th September 2022

I.A. No. 349 of 2022 This application for suspension of sentence has been assigned to DB-III by an order dated 9 th June 2022 passed by Hon'ble the Chief Justice, High Court of Jharkhand, on administrative side.

2. The sole appellant has been convicted and sentenced to RI for life and fine of Rs.10,000/- under section 302 of the Indian Penal Code for committing murder of Dinesh Mahto, with a default stipulation to undergo further SI for one year.

3. In Sessions Trial No. 167 of 2015, the prosecution examined eight witnesses to support the charge under section 302 of the Indian Penal Code framed against the appellant.

4. The previous application for suspension of sentence moved by the appellant vide I.A. No. 7101 of 2018 was dismissed vide order dated 31 st October 2018.

5. The second attempt by the appellant to seek suspension of sentence during pendency of Criminal Appeal (DB) No. 1577 of 2017 was also rejected by an order dated 12th March 2021.

6. Mr. Nagmani Tiwari, the learned counsel for the appellant would submit that in the orders dated 31st October 2018 and 12th March 2021 this Court has considered merits of the case while declining the prayer for

suspension of sentence. However, in the present application vide I.A. No. 349 of 2022, the appellant seeks to put forth a plea that even accepting the prosecution evidence as true conviction of the appellant under section 302 of the Indian Penal Code is not proper. Rather, the appellant, at best, may be convicted and sentenced under section 304 Part-I of the Indian Penal Code.

7. To lay support of the aforesaid submission, the learned counsel for the appellant refers to the judgments in "Mohd. Rafiq @ Kallu v. State of Madhya Pradesh" (2021) 10 SCC 706, "Gurmukh Singh v. State of Haryana" (2009) 15 SCC 635 and "Ajmal v. The State of Kerala" 2022 LiveLaw (SC) 609.

8. The learned counsel for the appellant has referred to paragraph nos.11, 12 and 13 of the judgment in "Mohd. Rafiq @ Kallu" which read as under:

"11. The question of whether in a given case, a homicide is murder, punishable under Section 302 IPC, or culpable homicide, of either description, punishable under Section 304 IPC has engaged the attention of courts in this country for over one-and-a-half century, since the enactment of the IPC; a welter of case law, on this aspect exists, including perhaps several hundred rulings by this Court. The use of the term "likely" in several places in respect of culpable homicide, highlights the element of uncertainty that the act of the accused may or may not have killed the person. Section 300 IPC which defines murder, however refrains from the use of the term likely, which reveals absence of ambiguity left on behalf of the accused. The accused is for sure that his act will definitely cause death. It is often difficult to distinguish between culpable homicide and murder as both involve death. Yet, there is a subtle distinction of intention and knowledge involved in both the crimes. This difference lies in the degree of the act. There is a very wide variance of degree of intention and knowledge among both the crimes.

12. The decision in State of A.P. v. Rayavarapu Punnayya notes the important distinction between the two provisions, and their differing, but subtle distinction. The Court pertinently pointed out that : (SCC p. 386, paras 12-13) "12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice-versa.

Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises

three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.

13. The academic distinction between "murder" and "culpable homicide not amounting to murder" has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300."

13. The considerations that should weigh with courts, in discerning whether an act is punishable as murder, or culpable homicide, not amounting to murder, were outlined in Pulicherla Nagaraju v. State of A.P. This Court observed that : (SCC pp. 457-58, para 29) "29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters -- plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or

whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion;

(x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention."

9. In the present case PW 5 who conducted the post mortem examination has found abrasion of ½ cm x ½ cm on the left of the chest of Dinesh Mahto. The doctor has also observed fracture of 4 th rib and few other injuries over left thumb and left index finger of the deceased. The submission made by the learned counsel for the appellant is that the aforesaid injuries caused to Dinesh Mahto by the appellant are not likely to cause death and while so the appellant at best can be convicted under section 304 Part-I of the Indian Penal Code.

10. Ms. Nehala Sharmin, the learned Spl. PP opposed the prayer for suspension of sentence of the appellant.

11. However, in view of the aforesaid plea urged on behalf of the appellant more particularly the period of custody which the appellant has undergone since 4th December 2014 - he has undergone custody of 7 years 9 months - and it is not in dispute that there is no likelihood of the present criminal appeal being heard in near future and, therefore, we are inclined to suspend the sentence awarded to the appellant.

12. Accordingly, the appellant, namely, Durga Mahto is directed to be released on bail, during pendency of this appeal, on furnishing bail bond of Rs. 10,000/- (rupees ten thousand only) with two sureties of the like amount each to the satisfaction of the learned Additional Judicial Commissioner-VI, Ranchi in Sessions Trial No. 167 of 2015, subject to the conditions that:

(i) the appellant shall deposit the fine amount within six weeks from today, failing which he shall surrender before the Court concerned;

(ii) the appellant shall remain physically present or through

his authorized counsel in the Court whenever this criminal appeal is listed for hearing in the Court, however, if no one appears on his behalf on the day when this criminal appeal is listed on Board for hearing the State may file an application for recall of this order, and;