Jharkhand High Court
Narayan Hembram @ Naran Hembram vs The State Of Jharkhand on 12 June, 2024
Bench: Ananda Sen, Subhash Chand
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Criminal Appeal (DB) No. 168 of 2015
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Narayan Hembram @ Naran Hembram, son of Ram Hembram, R/o Village
Sunsunia, PO & PS Chakulia, District East Singhbhum at Jamshedpur
.... ..... Appellant
Versus
The State of Jharkhand ... .... Respondent
With
Criminal Appeal (SJ) No. 78 of 2013
------
Sunil Hambram @ Sunil Hembram, son of Ram Sai Hembram, R/o Village
Sunsuniya, PO & PS Chakulia, District East Singhbhum, Jharkhand
.... ..... Appellant
Versus
The State of Jharkhand ... .... Respondent
------
(Both the Appeals against the judgment of conviction dated 12 th October 2012 and the
order of sentence dated 17th October 2012 passed by the learned District & Additional
Sessions Judge at Ghatshila in Sessions Trial No. 167 of 2006)
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CORAM: SRI ANANDA SEN, J.
SRI SUBHASH CHAND, J.
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For the Appellant(S) : Mr. Jitendra Tripathi, Advocate
[In Cr. Appeal (DB) No.168 of 2015]
Mr. Soumitra Baroi, Advocate
[In Cr. Appeal (SJ) No.78 of 2013]
For the State : Mr. Abhay Kr. Tiwari, APP
[In Cr. Appeal (DB) No.168 of 2015]
Mr. Vishwanath Roy, Spl. PP
[In Cr. Appeal (SJ) No.78 of 2013]
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JUDGMENT
Dated: 12th June 2024
Per, Subhash Chand, J.
Criminal Appeal (DB) No. 168 of 2015 has been directed on
behalf of the appellant Narayan Hembram @ Naran Hembram against the
judgment of conviction dated 12.10.2012 wherein the appellant Narayan
Hembram @ Naran Hembram was convicted for the offence under section
302 of the Indian Penal Code and sentenced with imprisonment for life and
a fine of Rs. 5,000/-.
2. Criminal Appeal (SJ) No. 78 of 2013 has been directed on
behalf of the appellant Sunil Hambram @ Sunil Hembram against the
judgment of conviction dated 12.10.2012 wherein the appellant was
convicted for the offence under section 324 of the Indian Penal Code and
sentenced with rigorous imprisonment of three years.
3. Both these appeals have been directed against one and same
case crime, therefore, both are decided by this common judgment.
4. The brief facts of the prosecution case leading to these Criminal
Appeals are that the fardbeyan of the informant Kanahailal Hembram was
recorded on 23.10.2005 at 10:30 in night at the Primary Health Centre in
which the allegations are made that his uncle Supai Hembram had cut the
tree of Neem, Choula and Haat standing on his own land. His uncle and the
informant went to their agriculture field and in their absence, Sunil
Hembram, Anil Hembram, Narayan Hembram, Jeebu Hembram, all resident
of Sunsuniya, P.S. Chakulia, District-East Singhbhum, Jharkhand had taken
the wood of those cut tree to their house. When his uncle, his grandfather
and he, came back to their house in the evening, found the wood of the cut
trees missing. On making queries, it came to know all the above four
accused had taken the same to their house. Thereafter he, his grandfather
Parav Hembram and his uncle Supai Hembram reached at 8:30 in the
evening to the house of Sunil Hembram in regard to the whereabout of the
woods of the cut tree. On this very issue, Sunil Hembram armed with axe
assaulted on his head. Anil Hembram who was armed with the lathi
assaulted on the hand of Parav Hembram, the grandfather of the informant.
Narayan Hembram and Jeebu Hembram both were armed with the lathi had
assaulted on the back arm. On raising alarm, the persons of the locality
attracted there and the informant Kanhailal Hembram and his grandfather
Parav Hembram, both were taken to the Primary Health Centre, Chakulia for
treatment. On this very written information, Chakulia Case Crime No. 68 of
2005 was registered under Sections 341, 324, 307 read with 34 of the Indian
Penal Code against Sunil Hembram, Anil Hembram, Jeebu Hembram and
Narayan Hembram and after death of Prav Hembram, the Section 302 of
Indian Penal Code was also enhanced.
5. The Investigating Officer after having concluded the
investigation filed charge-sheet against the four accused persons Sunil
Hambram @ Sunil Hembram, Narayan Hembram @ Naran Hembram, Anil
Hembram and Jeebu Hembram for the offence under sections 341, 323, 307,
302 read with 34 of IPC. Out of the four persons, two accused persons Anil
Hembram and Jeebu Hembram being juvenile their case was separated and
was sent to trial to the Juvenile Court.
6. The charge was framed against both the two accused Sunil
Hembram and Narayan Hembram. The charge was read over and explained
to both the accused persons who denied the same and claimed to face the
trial.
7. On behalf of the prosecution to prove the charge against both
the accused persons in oral evidence examined altogether nine witnesses i.e.
PW1- Vikram Hembram, PW2- Chatra Hembram, PW3- Bhim Mardi,
PW4- Samu Hembram, PW5- Somai Hembram, PW6- Supai
Hembram, PW7- Kanahailal Hembram, PW8- Dr. J. Sriniwas Rao and
PW9- Dr. Harendra Kumar Alok and in documentary evidence, the
prosecution has adduced Exhibit-1 inquest report, Exhibit-2 signature of
Kanhailal Hembram on the fardbeyan; Exhibit-2/1, signature of Singrai
Hembram on the fardbeya, Exhibit-3 postmortem report, Exhibit-4
injury report.
8. The statement of the accused persons were recorded under
Section 313 of the Code of Criminal Procedure, in which, both the accused
persons denied the incriminating circumstances in evidence against them
and stated themselves to be innocent.
9. The learned Trial Court after hearing the rival submission of the
learned counsel for the parties passed the impugned judgment of conviction
dated 12.10.2012 and the order of sentence dated 17.10.2012 holding guilty
Narayan Hembram for the offence under Section 302 of Indian Penal Code
and Sunil Hembram for the offence under Section 324 of Indian Penal Code
and sentenced them as stated hereinabove.
10. Aggrieved from the impugned judgment of conviction and
sentence, Criminal Appeal (DB) No. 168 of 2015 was filed on behalf of
Narayan Hembram @ Naran Hembram and Criminal Appeal (SJ) No. 78 of
2013 was filed on behalf of Sunil Hembram @ Sunil Hembram.
11. We have heard the learned counsel for the appellants and
learned APPs for the State and perused the material available on record.
12. Learned counsel for the appellant Sunil Hambram @ Sunil
Hembram has submitted that the appellant has been convicted for the
offence under section 324 of IPC and sentenced for three years without
assigning any reason on wrong appreciation of the evidence. No alleged
offence is proved against the appellant from the evidence on record.
13. Learned counsel for the appellant Narayan Hembram @ Naran
Hembram has submitted that the impugned judgment of conviction and
sentence passed against the appellant is based on wrong appreciation of the
evidence. Learned trial court has not appreciated the evidence on record in
proper perspective. The very intention and knowledge which is required for
the offence of murder is not proved from the prosecution evidence. As the
more the appellant would have been convicted for the offence under section
304 of IPC. In view of the above contended to allow the appeal and to set
aside the impugned judgment of conviction and sentence.
14. Per contra learned APPs on behalf of the prosecution in both the
criminal appeals have vehemently opposed the contentions made by the
learned counsel for the appellants and have stated that the impugned
judgment of conviction and sentence passed by the learned trial court is
based on the proper appreciation of the evidence on record, same bears no
infirmity and needs no interference, accordingly, contended to dismiss both
the appeals.
15. In order to decide the legality and propriety of the impugned
judgment of conviction and the order of sentence passed by the learned Trial
Court, we would like to appreciate the evidence adduced on behalf of the
prosecution which is reproduced hereinbelow:
15.1 PW1-Vikram Hembram, in his examination-in-chief says the
occurrence was of 23.11.2005 at 8:30 of night. He was at his house.
Hearing the noise, he came out of his house and saw Kanahailal Hembram
injured whose had sustaining injury on the forehead and Prav Hembram was
lying on the ground. Sunial Hembram was armed with axe. Jeebu Hembram,
Anil Hembram and Narayan Hembram, all were armed with lathi. Prav
Hembram died in the hospital. His inquest report was prepared, he also put
his signature thereon which he identified marked as Exhibit-1.
In cross-examination this witness says the place of occurrence
is after four or five house from his own house. Anil and Jeebu Hembram
both were armed with lathi and both assaulted. He remained at the place of
occurrence for ten minutes. The other persons of the village were also
present there. Kanahailal Hembram had two injuries on his forehead. Prav
Hembram had also injuries on his body which he could not see.
15.2 PW2- Chatra Hembram, in his examination-in-chief says that
the occurrence was of five years ago at 8'o'clock in night. Hearing the noise
he also reached to the place of occurrence which was house of Sunil and saw
Kanahailal who had sustained injuries on his forehead and Prav was lying on
the ground after having sustained injuries. The injury was on the head of
Prav also. Sunil was armed with tangi. Narayan, Jeebu who were armed
with lathi. Sunil had assaulted to Prav.
In cross-examination this witness says after the occurrence,
police did not meet him.
15.3 PW3- Bhim Mardi, in his examination-in-chief corroborated
the prosecution story.
In cross-examination this witness says police never interrogated
him. He is giving statement for the first time in Court.
15.4 PW4- Samu Hembram, in his examination-in-chief says that
he had heard in regard to the occurrence from Kanahailal Hembram who
told him that on the issue of wood, Sunil, Narayan, Anil and Jeebu, all
assaulted them. Kanahailal had sustained injury on the head. Prav died in the
hospital on account of sustaining injury.
This witness in cross-examination says that police did not
interrogate him.
15.5 PW5- Somai Hembram, in his examination-in-chief says that
the occurrence was of 23.10.2005 at 8'o'clock in the evening of night, he
was returning from his agriculture field. When he reached near the house of
Sunia, he saw Kanahailal, Supai and Prav Hembram there. All these three
who were asking to Sunil why the wood of the cut dried trees were brought
by them to his house. On this very issue, Sunil assaulted with axe on the
head of Kanahailal. Narayan, Jeebu, Anil assaulted to Prav with lathi on his
back head and other parts of the body. Prav fell down on the ground on
account of sustaining injuries. Injured were taken to the hospital Chakulia
from there he was referred to Jamshedpur and amid the way to Jamshedpur,
Prav died.
In cross-examination this witness says Narayan is his real elder
brother. On the date of occurrence, he had gone to his agriculture field at 6
O'clock in the evening and remained there for one and half hours till 7:30.
When he came back, it was dark night. He reached to the place of
occurrence after 8 O'clock.
15.6 PW6- Supai Hembram, in his examination-in-chief says the
occurrence is of 23.10.2005 at 8 O'clock in night. He had come back to his
house from the agriculture field at 5 O'clock and saw the wood of the cut
dry tree was found missing from his house. Prav Hembram told that the
woods were taken by Sunil Hembram by the bullockcart to his house. Then
he, Prav Hembram reached to the house of Sunil and asked him in regard to
the wood. Sunil, Narayan Hembram, Anil Hembram and Jeebu all began to
quarrel. Sunil assaulted to Prav Hembram with the axe whereby Prav
Hembram fell down on the ground sustaining injuries. Sunil and other
accused persons dragged Prav inside his house. Kanahailal came to rescue,
Sunil also assaulted with axe on the head of Kanahailal who sustained head
injury. Blood was oozing. For treatment, the injured was taken to the
hospital Chakulia and from there he was referred for better treatment to
M.G.M. Hospital, Jamshedpur but amid the way to Jamshedpur, Prav died.
Kanahailal was undergoing treatment at Chakulia hospital as well as
Jamshedpur.
In cross-examination this witness says the persons of the village
had told that Sunil Hembram had taken the woods. He also told to family
members of Prav and Kanahailal also in regard to missing of the woods.
Panchayat was called at 5:30 in the evening and it was held that the wood
were of the informants. He told to police that Sunil had assaulted with axe to
Prav who fell down on the ground sustaining injuries and body of Prav was
also dragged by the accused persons inside the house of Sunil. The place of
occurrence is the house of Sunil.
15.7 PW7- Kanahailal Hembram, in his examination-in-chief says
the occurrence is of 23.10.2005 at 8 O'clock in night his uncle Supai
Hembram had cut the dry tree and they all had gone to the agriculture field
came back at 5 O'clock in the evening to the house. His uncle Supai
Hembram found the wood of the cut dry tree missing. On queries, it came to
know that Sunil Hembram, Narayan Hembram, Anil Hembram and Jeebu
had taken the same. He, his grand-father and uncle Supai Hembram all the
three went to house of Sunil and asked in regard to the whereabouts of the
wood. Sunil assaulted with axe on his head. Blood began to ooz from his
head. Further a lathi blow was also given to Parav who fell down on the
ground. Hearing hue and cry the persons of the village also attracted there,
who also saw the occurrence. Among them were Bhim Hembram, Somai
Hembram, Vikram Hembram and others. They also saw the occurrence on
their own eye. He identified all the accused persons present in dock. Prav
died within 24 hours of the occurrence. He had not seen the accused person
from his own eye taking the wood to their house, who assaulted to whom in
this occurrence he saw from his own eye.
15.8 PW8- Dr. J. Sriniwas Rao, in his examination-in-chief says on
25th October, 2005, he conducted the postmortem of Parav Hembram and
found following external injuries:
(i) Stitched wound 3 cm in length one stitch present over front
of the head.
(ii) Stitched wound 2 cm in length one stitch was over back of
the head.
(iii) stitched wound 4 cm in length over middle of the head.
(iv) Stitched wound 3 cm in length one stitch was found over
middle of the head.
(v) Lacerated wound 1 ½ cm x 0.5 cm x scalp deep over left
side of the head.
(vi) Contusion 4 cm x 2 cm over right side of forehead.
(vii) Contusion 6 cm x 5 cm over back of left side chest.
(viii) Abrasion 2 cm x 1 cm over right of face.
(ix) Contusion ½ cm x over right eye-lid.
(x) Contusion 6 cm x 4 cm over right forearm.
(xi) Contusion 5 cm x 2 cm over right front upper chest.
Internal Injuries
(i) Contusion 13 cm x 11 cm right and left posterior parital
occipital region of scalp.
(ii) Contusion right and left parital occipital lobe of the brain.
(iii) Fracture of redius and Ulna upper part right side.
(iv) Fracture ribs left side 3rd and 4th.
Opinion
Injury No.1 to 11 were antimortem injuries and injuries No.5 to
11 was caused by hard and blunt object and injuries No.1 to 4
were the surgical wound. Opinion can be given by the attending
surgeon.
Cause of death was due to head injury. Time since death 18 to
24 hours from the time of postmortem examination.
Postmortem report is in his pen and signature which he
identified marked Exhibit-3.
15.9 PW9- Dr. Harendra Kumar Alok in his examination-in-chief
says on 23rd October, 2005, he was posted at P.H.C. Chakulia as Medical
Officer. He examined the injuries of Kanailal Hembram which is as under:
(i) Lacerated wound 2" x 3/4" x ½" on left side of forehead.
Advised x-ray A.P. and lateral and C.T. Scan of brain.
(ii) Swelling 1½ x ¾" over upper portion of sternum.
(iii) Swelling 1½ x ¾" over middle portion of left arm.
Nature of injury- opinion regarding the injuries were reserved
as the patient was referred to M.G.H. Hospital, Jamshedpur for further
investigation and treatment.
16. As per FIR case the eye-witness of the occurrence are PW6-
Supai Hembram and PW7- Kanailal Hembram who is also the informant
and injured eye-witness of occurrence has stated that on 23.10.2005 his
uncle Supai Hembram had cut the dry tree and wood thereof was also placed
behind his house in Bari and they all had gone to the agriculture field, came
back in the evening at 5 O' clock and found the wood of Supai Hembram
missing. On queries, it came to know that it was accused persons Sunil
Hembram, Narayan Hembram, Jeebu Hembram and Anil Hembram who had
taken the same to their house of Sunil. His uncle Supai Hembram alongwith
him and grand-father Parav Hembram went to the house of Sunil and made
queries in regard to whereabouts of the missing wood. Sunil assaulted on his
head with axe and Parav Hembram was also assaulted whereby Parav fell
down on the ground due to sustaining injuries. All the accused persons have
assaulted to Parav Hembram. Hearing the hue and cry the persons of the
village Bhim Hembram, Somai Hembram, Vikram Hembram and Samu
Hembram also attracted there. This witness also proved contents of the
fardbeyan given to the police officer. He also says that he and his grand-
father Parav both were taken to the hospital to Chakulia from there after
giving his examination by the doctor in Chakulia his grand-father Parav was
referred for further treatment to the hospital at Jamshedpur and amid the
way his grand-father died.
17. The another eye-witness of the occurrence is Supai
Hembram, this witness also says that the occurrence is of 23.10.2005 at 8
O'clock of night he had come back from the agriculture field to his house at
5 O'clock and found his wood cut of the dry tree missing and came to know
that Sunil Hembram had taken the same by the bullockcart to his house. He
alongwith Parav Hembram and Kanahailal Hembram reached to the house
of Sunil Hembram and asked him in regard to the whereabouts of the
missing wood. Sunil Hembram assaulted Parav Hembram with axe. Sunil
also assaulted to Kanahailal Hembram with the axe when Kanahailal
Hembram came to rescue of grand-father Parav Hembram. Both the injured
were taken to the hospital for treatment at Chakulia from there they were
referred to Jamshedpur, while in way to Jamshedpur Parav Hembram died.
This witness also says that all the accused Sunil Hembram, Narayan
Hembram, Anil Hembram and Jeebu Hembram began to fight on the issue
of missing wood and all the accused persons also dragged to Parav
Hembram in injured condition inside the house of Sunil.
18. The testimony of these two eye witnesses is also corroborated
with the testimony of PW1- Vikram Hembram, PW2- Chatra Hembram,
PW3- Bhim Mardi, PW4- Samu Hembram, PW5- Somai Hembram. Though
PW1 to PW4 all reached to the place of occurrence and found injured
Kanahailal Hembram and Parav Hembram lying on the ground on account
of sustaining injury.
19. PW5- Somai Hembram is also the eye-witness of the
occurrence. He in his statement has categorically stated that Narayan, Jeebu
and Anil assaulted to Parav Hembram with lathi which hit on his back and
forehead. Sunil Hembram has assaulted to Kanahailal Hembram with the
axe which hit on his forehead.
20. The testimony of eye-witness PW5- Somai Hembram, PW6-
Supai Hembram and PW7- Kanahailal Hembram is also corroborated
with the medical evidence. So far as the injury of Kanahailal Hembram
injured eye witness PW7 are concerned, same have been proved by the
witness PW9- Dr. Harendra Kumar Alok who has stated that there were
three external lacerated wound: (i) Lacerated wound 2" x 3/4" x ½" on left
side of forehead. Advised x-ray A.P. and lateral and C.T. Scan of brain, (ii)
Swelling 1½ x ¾" over upper portion of sternum and (iii) Swelling 1½ x ¾"
over middle portion of left arm. This doctor has not opined the nature of
the injuries of injured Kanahailal Hembram. PW8- Dr. J. Sriniwas Rao
has proved the postmortem report of deceased Parav Hembram who has
stated eleven external injuries, injury no.i (one) to iv (four) were the stitched
wound, v (five) was the lacerated wound, vi (six) and vii (seven) only
contusions, viii (Eight) was the abrasion and ix (nine) to xi (eleven) are the
contusions. Injury no.1 stitched wound is shown on the front of the head and
the cause of death is also shown shock and hemorrhage as a result of
contusions. So far as the injury no.i to iv stitched wound are concerned the
opinion was not given in regard to the nature of the injury. As such the
medical evidence also corroborates the ocular evidence.
21. The learned counsel for the appellant Sunil Hambram @ Sunil
Hembram in Criminal Appeal (SJ) No. 78 of 2013 has argued that the
conviction of the appellant for the offence under section 324 is not made out
against him. As such the conviction of him deserves to be set aside for the
offence under section 324 of IPC.
21.1 From the very perusal of the impugned judgment passed by the
learned trial court it is found that the learned trial court has convicted the
appellant Sunil Hambram @ Sunil Hembram for the charge under section
324 of IPC taking into consideration the separate role attributed to him in
commission of the alleged offence.
21.2 Herein the injury report of appellant Sunil Hambram @
Sunil Hembram has been proved by PW9- Dr. Harendra Kumar Alok
as Exhibit-4. The injuries mentioned in the injury report of injured
Kanahailal Hembram are shown as under: Injury no.i is the lacerated wound
2" x 3/4" x 1/2" on left side of forehead. Advised X-ray A.P. and lateral an
C.T. Scan of brain. Injury No.ii is the swelling 1½ x 3/4" over upper portion
of sternum and Injury No.iii is the swelling 1½" x 1" over middle portion of
left arm. In this injury report, nature of the injury is not opined by
PW9- Dr. Harendra Kumar Alok. In regard to the injury no.i the
injured was advised for X-ray and also C.T. Scan. There is no X-ray
report or C.T. Scan report of the injured Kanahailal Hembram on the
file of trial court.
21.3 It would be relevant to mention certain statutory provisions of
Section 319 and Section 320 of the Indian Penal Code which reads as
under:
"319. Hurt.- Whoever causes bodily pain, disease
or infirmity to any person is said to cause hurt.
320. Grievous hurt.- The following kinds of hurt
only are designated as "grievous": -
First.- Emasculation.
Secondly.- Permanent privation of the sight of either
eye.
Thirdly.-Permanent privation of the hearing of
either ear.
Fourthly.- Privation of any member or joint.
Fifthly.- Destruction or permanent impairing of the
powers of any member or joint.
Sixthly.- Permanent disfiguration of the head or
face.
Seventhly.- Fracture or dislocation of a bone or
tooth.
Eighthly.-Any hurt which endangers life or which
causes the sufferer to be during the space of twenty
days in severe bodily pain, or unable to follow his
ordinary pursuits."
21.4 In the injury report of injured Kanahailal Hembram injury no.1
is the lacerated wound 2" x 3/4" x 1/2" on left side of forehead. Though, for
this injury, the injured was advised for X-ray and C.T. Scan same was not
done. Opinion in regard to nature of the injury no.1 was not given by
the doctor for lack of X-ray or C.T. Scan report.
21.5 Taking into consideration the seat of the injury report which is
on the forehead of the injured which is on the vital part of the body, this
lacerated wound which was caused to him; taking into consideration the
same the intention and knowledge of the assailant in causing this injury on
the vital part amounts the offence attempt to murder under section 307 of
IPC.
21.6 Since on behalf of the State the conviction of the appellant
which was held by the learned trial court for the offence under section 324
of IPC, we cannot convict the appellant for the offence under section 307 of
IPC. The only option before us is to see the legality and propriety of the
conviction of the appellant under section 324 of IPC by the trial court.
21.7 From the bare provision of section 320 of IPC wherein eight
kind of injuries are designated as grievous, this injury does not come
under the eight categories of designated grievous hurt and there being
no opinion of the doctor who examined the injury of injured Kanahailal
Hembram. All the injuries caused to the injured Kanahailal Hembram
by the assailant shall come under the purview of the hurt as defined
under section 319 of IPC. As such the conviction of the appellant by the
learned trial court for the offence under section 324 of IPC does not
bear any infirmity.
22. So far as the sentence which has been awarded by the learned
trial court to the appellant Sunil Hambram @ Sunil Hembram for the
offence under section 324 of IPC i.e. the maximum sentence 3 years as
provided under section 324 of IPC. The learned trial court while imposing
the maximum sentence has not recorded any reasons inflicting the maximum
sentence to the appellant convict, therefore, same also needs interference.
22.1 The learned counsel for the appellant Sunil Hambram @ Sunil
Hembram has submitted that the appellant has served out the sentence of
9 months and has faced the sessions trial and thereafter facing this appeal
for last 19 years. His sentence may be reduced from 3 years to the sentence
which the appellant has served out.
22.2 Learned APP opposed this contention vehemently made by the
learned counsel for the appellant.
22.3 Taking into consideration the submission made by the
learned counsel for the parties, we are of the considered view that the
occurrence being of the year October, 2005 and he has faced the trial till
17.10.2012 and thereafter, he preferred Criminal Appeal (SJ) No. 78 of
2013 and has been facing the appeal continuously more than 10 years.
22.4 Sunil Hambram @ Sunil Hembram was arrested on 23.10.2005
and he has served out the sentence about 9 months. The appellant Sunil
Hambram @ Sunil Hembram was granted bail by this Court in B.A. No.
3445 of 2006 on 04.07.2006.
23. In Criminal Appeal (DB) No. 168 of 2015, learned counsel for
the appellant Narayan Hembram @ Naran Hembram has submitted that the
learned trial court has convicted the appellant for the offence under section
302 of IPC; while the occurrence took place on the issue when the informant
alongwith uncle and grand-father reached to the house of Sunil Hambram @
Sunil Hembram wherein Sunil Hambram @ Sunil Hembram and the present
appellant Narayan Hembram @ Naran Hembram, Anil Hembram, Jeebu
Hembram are alleged to be present. Since they were asked in regard to the
whereabout of the wood of the cut dry trees alleged to have been carried
away from the house of the informant this provoked all the persons
including the appellant and assaulted. There was no intention or pre-
meditation on part of the appellant to cause murder of Parav Hembram.
Alternatively it is also argued that it may be the case under the exception-4
where the murder was committed without any pre-meditation in a sudden
fight in hit of passion upon a sudden quarrel without the offender having
taken undue advantage.
24. The learned APP opposed this contention vehemently and
contended that the injury which was inflicted by the weapon axe was
sufficient in its ordinary course of nature to cause death as such the case
would come under section 302 of IPC.
25. From the evidence adduced on behalf of the prosecution it is
found when the informant alongwith his uncle Supai Hembram and grand-
father Parav Hembram went to the house of Sunil Hambram @ Sunil
Hembram wherein Sunil alongwith other accused including the present
appellant Narayan Hembram @ Naran Hembram were present and they
asked them in regard to the whereabouts of the cut dry tree of the
informant's uncle Supai Hembram. This contention and act of the informant,
his uncle and grand-father was opposed by the appellant and other accused
present thereon. In hit of passion the appellant and other co-accused began
to assault on the informant and his grand-father and there is nothing on
record from the evidence that the appellant was having any pre-meditation
to commit murder of Parav Hembram and in heat of the passion the
appellant Narayan Hembram had given the blow with the axe to Parav
Hembram resulting his death without any pre-meditation assaulted in heat of
passion in the sudden quarrel. As such from the evidence on record the
charge against the appellant Narayan Hembram is made out under the
Exception-4 of section 300 of IPC punishable under section 304 of IPC.
As such the conviction of the appellant deserved to be converted for the
offence under section 304 of IPC murder culpable of homicide not
amounting of murder.
25.1 The Hon'ble Apex Court held in "Rajendra Singh v. State of
Bihar" (2000) 4 SCC 298 held that the necessary ingredient for the
Exception-IV to the Section 300 are: (a) sudden fight, (b) absence of pre-
meditation (c) no undue advantage or cruelty but the occasion must be
sudden and not a cloak for pre-existing malice.
25.2 In the present appeal from the prosecution evidence it is found
that it was the informant and his uncle and grand-father who had gone to the
house of the appellant and who asking the whereabout of the wood of the cut
dry tree the sudden fight arose. The appellant without taking undue
advantage or without any cruelty assaulted. The occasion of the fight was
sudden as the informant and his uncle and grand-father has reached to the
house of the appellant suddenly. Accordingly, the conviction and sentence
of the appellant Narayan Hembram for the charge under section 302 of
IPC needs interference and the appellant is being convicted for the
charge under section 304 Part II of IPC.
26. Accordingly Criminal Appeal (DB) No. 168 of 2015 is partly
allowed. The conviction of the appellant Narayan Hembram for the charge
under section 302 of IPC is set aside and the same is modified by convicting
the appellant for the charge under section 304 Part-II of IPC and is
sentenced with imprisonment for 10 years and also a fine of Rs.5,000/-. In
default of payment of fine, the additional imprisonment of two months shall
have to undergo.
27. Criminal Appeal (SJ) No. 78 of 2013 is dismissed against the
conviction for the offence under section 324 of IPC but is partly allowed
modifying the sentence as the period of imprisonment undergone by the
appellant Sunil Hambram @ Sunil Hembram. His bail bonds are hereby
cancelled and the sureties stands discharged.
28. Let the record of learned trial court be sent back alongwith copy
of the judgment for necessary compliance.
(Ananda Sen, J.)
(Subhash Chand, J.)
High Court of Jharkhand, Ranchi
RKM
AFR
