Jharkhand High Court
Ganesh Sahani Son Of Chitu Sahani @ ... vs State Of Jharkhand on 1 October, 2024
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
Criminal Appeal (D.B.) No. 864 of 2017
[Arising out of judgment of conviction and order of sentence both dated
09.03.2017 passed by learned Additional Sessions Judge-II, Dhanbad in
Sessions Trial No. 557 of 2013 / Sessions Trial No. 19 of 2014 / Sessions Trial
No. 118 of 2014]
Ganesh Sahani son of Chitu Sahani @ Chittaranjan Sahani resident of Village
Bhagabandh, P.O. & P.S. Nirsa, District Dhanbad, Jharkhand
.... .... .... Appellant
--Versus--
State of Jharkhand .... .... .... Respondent
For the Appellant : Mr. R.S. Mazumdar, Sr. Advocate
Ms. J. Mazumdar, Advocate
For the State : Ms. Priya Shrestha, Special P.P.
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PRESENT: SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
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JUDGMENT
Reserved on: 26.09.2024 Pronounced On: 01.10.2024
Per Gautam Kumar Choudhary, J. Appellant is before this Court against the
judgement of conviction and sentence passed under Section 302 of the IPC.
2. Informant is the father of the deceased. As per the FIR, appellant and
Chitu Sahani had a tiff with deceased and they had threatened him with life.
Informant had a mobile shop and on 22.04.2013 at 9 p.m., informant and his
son (deceased) were returning home after closing their shop, when the appellant
and his other two accomplices namely Chitu Sahani and Nabik Sahani tried to
intercept him, but they somehow made good their escape. In the next morning
at 7 O'clock his son asked to drop him at the shop and they proceeded on
motorcycle. On way their motorcycle was stopped at 7.30 a.m. by the appellants
and others and then Ganesh Sahani (appellant) inflicted axe blow on the head
of his son. Informant fearing for his life somehow escaped from there. Chitu
Sahani was having a Bhujali and Nabik Sahani was having a rod in his hand.
On hulla, crowd gathered and the accused persons fled from the place of
occurrence. Deceased sustained fatal injury and died while being taken to the
hospital for treatment.
3. On the basis of the fardbeyan, Nirsa P.S. Case No.116/13 was registered
under Section 302/34 of the IPC against all the three named accused persons.
Separate charge sheets were submitted against the three, who were jointly put
on trial for the offence under Section 302/34 of the IPC.
4. Altogether 12 witnesses were examined on behalf of the prosecution and
relevant documents including inquest report, post mortem examination report
and FSL report were adduced into evidence and were marked as Exhibit 1 -
14/1. Defence has also examined one witness as D.W. 1.
5. Appellant- Ganesh Sahani was convicted by the learned trial court while
the other two accused persons were acquitted as they had not given the fatal
blow to the deceased.
6. Judgment of conviction and sentence is assailed on the ground that there
was no eye witness to the incidence. Informant (P.W. 8) is not creditworthy as
he did not sustain even a scratch, although he claims to be present at the place
of occurrence facing three armed accused persons. It is further argued that it is
a case of single blow and the offence under Section 302 of the IPC will not be
made out and even if the prosecution evidence is accepted, at best it will be a
case of Section 304 Part II of the IPC. Reliance is placed on Anbazhagan Vs.
State represented by Inspector of Police, 2023 SCC OnLine SC 857 para 66,
67-69.
7. Learned A.P.P. has defended the judgment of conviction and sentence.
8. Homicidal death is not in dispute and has been duly proved by the Doctor
(P.W. 10). Doctor found the following ante mortem injuries: -
I. Incised wound 3 ½" x 1 ½ " x brain deep obliquely over parietal region
of right side of head. The edges found contuse and irregular and margins
of underline bone sharp. The fractured bone found depressed with
lacerated brain matter protruding out.
II. Abrasion: -
a. 1 ½" x 1" on top of right shoulder,
b. ¾" x ¼" on outer side of right elbow,
c. 1 ½" x ½" on the back of right wrist,
d. 2 ½" x 1" on dorsal aspect of right hand.
Cause of the death was due to hemorrhage and shock as a result of injury
no.1 caused by sharp cutting weapon like axe.
9. Prosecution case hinges on the testimony of informant (P.W. 8), who is
the sole eye witness to the incidence. His narration of the incidence is
consistent with the FIR that while he was going to drop his son to the shop at
about 7.30 in the morning, the appellant and his two accomplices intercepted
them. Appellant struck his son with an axe over his head, as a result he fell
down. Informant somehow fled and on hulla, people gathered there on which
the accused persons fled away. Past enmity for non-payment of money of
mobile has been stated to be the genesis of offence.
10. The credit of a witness can be impeached either under Section 145 or 155
of the Evidence Act. Even if otherwise if the testimony is not inconsonance with
the natural course of human conduct it can be one of the reason to disbelieve
the testimony of the said witness. This witness has been cross examined at
length, but he has not been confronted with his statement given to police to elicit
any contradiction. There is no reason to disbelieve the testimony of this witness.
11. On these evidences, I do not find any infirmity in the finding of the trial
court that it was the appellant who struck the blow with axe resulting in fatal
injury to the deceased. Matter for consideration is whether the single blow over
the vital part of the body can be regarded in the facts and circumstance of the
case as sufficient to make out an offence under Section 302 of the IPC. There is
no law that single blow resulting in death will not amount to murder, as nature
and number of injury is only one of the factor to assess the intention or
knowledge of a person. It has to be appreciated in the context and overall fact
and circumstance of a case.
12. Culpable homicide is the genus, whereas murder is its species, in an
aggravated form. In order the appreciate the distinction between the two, it will
be desirable to extract Section 299 and 300 of the IPC which as under:
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 likely to cause death, or with the knowledge that he is likely by
such act to cause death, commits the offence of culpable homicide.
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
2ndly - If it is done with 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
3rdly - 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
4thly - If the person committing the act knows that it is so eminently
dangerous that must or in all probability, cause death are such bodily injury
as is likely to cause death, an commits such act without any excuse for
incurring the risk of causing death or such injury as aforesaid.
13. The difference between the two, lies in the degree. Murder is thus an
aggravated form of culpable homicide. Sir Barnes Peacock, C.J. observed in
Sheikh Bazu Vs. Emperor, 8WR.47 at page 51
"it does not follow that a case of culpable homicide is murder because it
does not fall within any of the exceptions in Section 300. To render culpable
homicide murder, the case must come within the provisions of Clause (1),
(2), (3) or (4)."
It has been held in Pulicherla Nagaraju v. State of A.P., (2006) 11 SCC 444,
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. Be that as it may.
14. In the present case, the informant and his son were intercepted by the
appellant and his two accomplices who were armed with dangerous weapons.
Informant somehow fled away from the place of occurrence leaving behind his
son. Accused persons were three in number, whereas the deceased was left
alone, despite this, there is only one fatal injury on the head of the deceased and
the others are abrasions. Appellant did not persist in the assault. This goes to
show that the appellant was not actuated by the requisite intention or knowledge
to cause death of deceased so as to bring his act within the definition of murder
under Section 300 of the IPC.
15. Appellant can however be credited with the intention of causing such
bodily injury on the vital part of the body of the deceased as was likely to cause
death. His act will invite conviction under Section 304 Part I IPC and not under
Section 302 IPC.
16. Under the circumstance, the judgment of conviction and sentence passed
under Section 302 of the IPC is set aside and he is convicted for the offence
under Section 304 Part I of the IPC. Appellant was aged 33 years at the time of
judgment, and there is nothing on record to suggest any criminal antecedent
against him. He has already undergone imprisonment of eleven years and
therefore, a sentence for imprisonment already undergone will serve the ends of
justice.
Criminal Appeal stands dismissed with modification in finding and
sentence.
Pending Interlocutory Application, if any, is disposed of.
Let the Trial Court Records be transmitted to the Court concerned along
with a copy of this judgment.
(Gautam Kumar Choudhary, J.)
Ananda Sen, J. I agree.
(Ananda Sen, J.)
High Court of Jharkhand, Ranchi
Dated, 1st October, 2024
AFR/Anit
