Unknown vs The State Of Jharkhand
2022 Latest Caselaw 3994 Jhar

                                             Cr. Appeal (D.B.) No. 575 of 2015
                                1

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                Cr. Appeal (D.B.) No. 575 of 2015

[Against the Judgment of conviction and order of sentence dated
05.06.2015, (Sentence passed on 09.06.2015) passed by Sri Swarn
Shankar Prasad, learned Additional Judicial Commissioner-VII,
Ranchi, in connection with Sessions Trial No. 434 of 2010, arising out
of Lapung P.S. Case No. 05 of 2010, corresponding to G.R. No. 618 of
2010.]

Masku Munda                                          ...     Appellant
                               -Versus-

The State of Jharkhand                              ...      Respondent
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PRES ENT HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE AMBUJ NATH

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For the Appellant        : M/s. Arshad Hussain, Advocate
For the State            : M/s. B. N. Ojha, A.P.P.
                               ---------
C.A.V. On 02.08.2022                    Pronounced On: 28.09.2022

1. Heard Mr. Arshad Hussain, learned counsel appearing for the appellant and Mr. B. N. Ojha, learned A.P.P.

2. This appeal is directed against the Judgment of conviction and order of sentence dated 05.06.2015, (Sentence passed on 09.06.2015) passed by Sri Swarn Shankar Prasad, learned Additional Judicial Commissioner-VII, Ranchi, in connection with Sessions Trial No. 434 of 2010, arising out of Lapung P.S. Case No. 05 of 2010, corresponding to G.R. No. 618 of 2010, whereby and wherein, the learned Additional Judicial Commissioner-VII, Ranchi, held the appellant, Masku Munda, guilty of the offences under Section 302 of the Indian Penal Code and thereby, sentenced him to undergo imprisonment for life along with a fine of Rs.5,000/-. No alternative sentence was passed in lieu of default of payment of fine.

3. The prosecution case was instituted on the basis of fardbeyan of the informant Bhikhu Mahli alleging therein that on 09.02.2010 at about 07:00 A.M., he alongwith Etwa Munda were cutting bamboos when the appellant Masku Munda came there and assaulted Etwa Munda by Tangi causing injuries on his face and neck due to which he succumbed to his injuries.

Cr. Appeal (D.B.) No. 575 of 2015

4. After investigation, police found the occurrence to be true and submitted charge-sheet against the appellant for the offence under section 302 of the Indian Penal Code. After cognizance the learned Chief Judicial Magistrate, Ranchi, committed the case to the Court of Sessions on 10.08.2010, as it was exclusively triable by the Sessions Court.

5. Charge was framed against the appellant on 25.10.2010, under Section 302 of the Indian Penal Code. The contents of the charge were read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried.

6. In order to prove its case, the prosecution has adduced both oral and documentary evidence.

7. Dhaniya Munda (P.W.1) is a witness of the inquest. He has identified his signature on the inquest report which is Ext.-1.

Bhima Oraon (P.W.2) is another witness of the inquest. He has also identified his signature on the inquest report which is Ext.-1/1.

Bandhu Oraon (P.W.3) is a hearsay witness, Bhikhu Mahli (P.W.4) is the informant of this case. He has supported the prosecution case and stated that the appellant had given axe blows to the deceased Etwa Munda due to which he succumbed to his injuries.

Jayant Barla (P.W.5) has stated that on pandemonium he went to the place of occurrence and saw the appellant assaulting Etwa Munda.

Rajdev Singh (P.W.6), is the Investigating Officer of this case. He has proved the fardbeyan which is Ext.- 2. He has also proved the formal F.I.R. which is Ext.- 3. He has further proved the inquest report which is Ext.- 4.

Dr. Chandra Shekhar Prasad (P.W.7) is the doctor who had performed the postmortem on the dead body of the deceased. He has proved the postmortem report which is Ext.- 5.

8. Statement of the appellant was recorded under Section 313 Cr.P.C. Defence is general denial of the occurrence and false implication.

9. On the basis of the evidence, both oral and documentary, available on record, learned Additional Judicial Commissioner-VII, Ranchi held the appellant, Masku Munda, guilty of the offence under Section 302 of Cr. Appeal (D.B.) No. 575 of 2015

the Indian Penal Code and sentenced him accordingly.

10. Mr. Arshad Hussain, learned counsel for the appellant has mostly confined his argument that on the point that from the facts of the case, no case under section 302 of the Indian Penal Code was made out. According to him, at best it will be a case under section 304 of the Indian Penal Code.

11. Mr. B. N. Ojha, learned counsel for the State has submitted that the eyewitnesses have clearly stated that the appellant Masku Munda has given several axe blows to the deceased due to which he succumbed to his injuries. It was further submitted that it is a case where repeated blows were given to the deceased and as such the case will come under the purview of section 302 of the Indian Penal Code. Accordingly, it was prayed that this appeal be dismissed.

12. Now, it has to be ascertained whether the prosecution has been able to prove its case against the appellant beyond the shadow of all reasonable doubts.

13. In order to come to the aforesaid finding, it has to be ascertained: -

(i) Whether the deceased Etwa Munda died a homicidal death?

(ii) Whether the appellant Masku Munda has caused a homicidal death of the deceased?

(iii) Whether from the facts and circumstances, this case will come under the purview of section 304 of the Indian Penal Code?

14. It is the case of the prosecution that deceased Etwa Munda died a homicidal death.

Jayant Barla (P.W.5) has stated that when he reached the place of occurrence, he saw the deceased lying in a pool of blood. There were injuries on his head and temporal region.

Rajdev Singh (P.W.6) has proved the inquest report which is Ext.-

4. From the perusal of the inquest report it transpires that the investigating officer had found cut injury on the neck of the deceased Etwa Munda and cause of death has been opined to be the aforesaid injury which was caused by an axe.

Cr. Appeal (D.B.) No. 575 of 2015

Dr. Chandra Shekhar Prasad (P.W.7) has performed the postmortem on the dead body of the deceased and has found the following injuries on his person.

Lacerated wounds

(i) 2 c.m X 1 c.m X soft tissue on the cheek upper part.

(ii) 2 c.m X 1 c.m X bone deep on the left cheek in front of left ear with fracture of underlined maxillary bone.

(iii) 4 c.m X 3 c.m X bone deep on left temporal parietal region of head posterior part with depressed fracture.

(iv) 4 c.m X 3 c.m in the left temporal parietal bone.

Incised Wounds

(i) 7 cm X 3 cm X bone deep on the front of neck middle parts cutting the soft tissue blood vessels, trachea, esophagus, fourth cervical, vertebrae including spinal cord. There was infiltrated blood and blood clots in the soft tissue and bony tissues at the sight.

(ii) 4 cm X 1 cm X bone deep on right temporal region of head cutting underlined bone partially.

According to this witness death was due to the aforesaid injuries. From the perusal of the postmortem report which is Ext.-5 it is evident that the oral testimony of Dr. Chandra Shekhar Prasad (P.W.7) on the point of the injury sustained by the deceased Etwa Munda and cause of death has been corroborated by his findings in the postmortem report.

From the aforesaid oral and documentary evidence, we come to a finding that the deceased Etwa Munda had died a homicidal death.

15. It is further the case of the prosecution that Bhikhu Mahli (P.W.4) and the deceased Etwa Munda were cutting bamboos when the appellant Masku Munda assaulted Etwa Munda by an axe resulting in his death.

Bhikhu Mahli (P.W.4) had stated that about one year ago, at 07:00 A.M., he alongwith Etwa Munda had gone to cut bamboos. They had cut one bamboo plant when the appellant came there and gave several axe blows on the head of Etwa Munda due to which he succumbed to his injuries.

He has identified the appellant in the dock. In his cross- examination he has stated that there was some altercation between the Cr. Appeal (D.B.) No. 575 of 2015

appellant and the deceased over cutting of bamboo. When the appellant came to the place of occurrence he did not see an axe in his hand. He has stated that he and the deceased were carrying axes.

Jayant Barla (P.W.5) has stated that the occurrence took place in February 2010, at about 07:00 A.M., he was present in his house and he heard the cry of the deceased Etwa Munda, on which he rushed to the place of occurrence. He saw Etwa Munda lying on the ground. He also saw that the appellant Masku Munda was inflicting axe blows on his head. He has admitted that there was dispute between the appellant and the deceased over the ownership of the bamboo shrubs. He has stated that Bhikhu Mahli was cutting bamboos at the instance of the deceased and the appellant was opposing their act. In his cross-examination he has stated that house of Masku Munda is at a distance of about 500 meters from the place of occurrence.

From the aforesaid oral testimony of the prosecution witnesses, it is apparent that the witnesses have supported the fact that appellant Masku Munda was claiming ownership over bamboo shrubs. Bhikhu Mahli and Etwa Munda had gone to cut bamboos which was opposed by the appellant Masku Munda. It has also come in evidence that the appellant had asked the deceased and Bhikhu Mahli not to cut bamboos, but after one bamboo was fell, he gave several axe blows to the deceased due to which he succumbed to his injuries.

From the aforesaid facts and circumstances, we come to a finding that the appellant Masku Munda had assaulted Etwa Munda only after Bhikhu Mahli continued cutting the bamboo at the instance of Etwa Munda despite of protest by the appellant. The appellant being agitated gave several axe blows on the person of the deceased due to which he succumbed to his injuries. The assault by the appellant does not appear to be pre-medicated. It appears to have taken place in a heat of passion upon sudden quarrel. The appellant will be liable to be convicted under section 304 Part-I of the Indian Penal Code.

16. Conviction and sentence of appellant Masku Munda is converted from Section 302 of the Indian Penal Code to one under section 304 Part- I of the Indian Penal Code. Appellant is sentenced to undergo R.I. for 10 Cr. Appeal (D.B.) No. 575 of 2015

years along with a fine of Rs.5,000/- and in default of payment of fine to further undergo simple imprisonment for three months.

17. This appeal is partly allowed.

18. It was submitted at the Bar that the appellant has remained in custody for more than ten years. Accordingly, the appellant shall be released forthwith, if he is not wanted in any other case.

19. Pending I.A., if any, also stands disposed of.

(Rongon Mukhopadhyay, J.)

(Ambuj Nath, J.)

Jharkhand High Court, Ranchi.

Dated:- 28.09.2022 Saurabh/ NAFR