Sudhir Murmu vs The State Of Jharkhand
2024 Latest Caselaw 8731 Jhar

Jharkhand High Court

Sudhir Murmu vs The State Of Jharkhand on 3 September, 2024

Author: Ananda Sen

Bench: Ananda Sen

             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                Criminal Appeal (D.B.) No.1489 of 2017
                                  ------
     [Arising out of judgment of conviction dated 09.06.2017 and
     order of sentence dated 13.06.2017, passed by learned District
     & Additional Sessions Judge-I, Dumka, in Sessions Trial No.188
     of 2013, arising out of Dumka (Muffasil) P.S. Case No.156 of
     2012 corresponding to G.R. No.1448 of 2012.]
                                  ------
     Sudhir Murmu, son of Roshan Murmu, resident of Village
     Jamkandar, P.S. Dumka (M), P.O. and District Dumka.
                                                      ... ... Appellant
                                  Versus
     The State of Jharkhand.                      ... ... Respondent
                                  ------
          PRESENT : SRI ANANDA SEN, J.
                     : SRI GAUTAM KUMAR CHOUDHARY, J.
                                  ------
     For the Appellant   : Mr. Arun Kumar, Advocate.
     For the State       : Ms. Shruti Shrestha, Spl. P.P.
                                  ------

                             JUDGMENT

By Court, :

This Criminal Appeal is preferred on behalf of the appellant being aggrieved by the judgment of conviction dated 09.06.2017 and order of sentence dated 13.06.2017, passed by learned District & Additional Sessions Judge-I, Dumka, in Sessions Trial No.188 of 2013, arising out of Dumka (Muffasil) P.S. Case No.156 of 2012 corresponding to G.R. No.1448 of 2012, whereby and wherein the appellant has been convicted for offences under Section 302 of the IPC, for which he was sentenced to undergo imprisonment for life with a fine of Rs.15,000/-.

2. Heard learned counsel for the appellant and learned Spl. P.P. for the State and perused the materials available on record.

3. Mr. Arun Kumar, learned counsel representing the appellant, vehemently argues that there was no intention of this appellant to commit murder of the deceased. The deceased happened to be the uncle of the appellant and in the F.I.R. it has come that there was some altercation between the parties, as a

result of which the blow was given. He submits that the weapon which was used was a big hard bamboo, which was used to tie the bullock with the cart, which was available at the place of occurrence. On these grounds, he submits that the appellant could not have been convicted under Section 302 of the IPC, at best it is a case of Section 304 Part-II of the IPC.

4. Per contra, Ms. Priya Shrestha, learned Spl. P.P., opposes the prayer and submits that the injury itself will show that the intention of the appellant was to commit murder of the deceased. The Doctor also proved the injury and he has found two injuries. Both were on the perito occipital scalp and skull bone had fractured on both the sides. The Doctor also found separation of frontal suture. She submits that the eye-witness who is P.W.-7 who is the wife of the deceased did not whisper about any previous enmity or quarrel before the assault, thus, Section 302 is made out in this case.

5. The prosecution case is based on the F.I.R. lodged by P.W.7. - the informant, is none but the wife of the deceased. She is also an eye witness. She stated that she was thrashing paddy in her barn where her husband who had gone with the bullock cart in the field for carrying paddy of others, returned, when this appellant (her nephew) asked her husband, why he had gone to carry paddy of others on hire and why not he brought the paddy crops of the appellant to the farm. On saying this, the accused took the bamboo which was attached to the bullock cart and assaulted her husband on the backside of his head. The deceased fell down and after being unconscious, died on spot. On the basis of the aforesaid prosecution story, Dumka (Muffasil) P.S. Case No.156 of 2012 case was registered under Section 302 IPC.

6. The police investigated the offence and filed charge- sheet under Section 302 of the IPC.

7. As the appellant pleaded not guilty, charge was framed and he was put on trial. Altogether 11 witnesses were examined but the Investigating Officer, whose statement was recorded in part and recording of further evidence was

adjourned, could not turn up as he died later on. Thus, his evidence was expunged.

8. Several documents and signatures were exhibited. The material exhibited i.e. the bamboo stick was also produced by the formal witness P.W.-11 who is Hawaldar Bhabhikhan Manjhi. After closure of the evidence, the Trial Court heard the argument and sentenced the appellant as mentioned hereinabove.

9. This case hinges solely upon the testimony of P.W.-7, who is the wife of the deceased and P.W.-9, who is the Doctor. The Investigating Officer has not been examined in this case but we could not find any material to come to a conclusion that the appellant was prejudiced by non-examination of the Investigating Officer.

10. From the evidence of the Doctor, we find that the deceased died due to head injury. The Doctor (P.W.-9), found the following external injury after examining the dead body:-

(i) "One wound size 1 ½" x 1 ½" x ½" found on left perito occipital scalp region, with bleeding, laceration and fracture of skull bone.

(ii) Another wound size 1" x 1/2" x 1/2" found on right perito occipital scalp region, with bleeding, laceration and fracture of skull bone.

(iii) Separation of frontal suture."

On dissection, the Doctor found that cranial cavity was full of blood, brain matter & meninges found lacerated."

11. From the aforesaid injury, we find that there were fracture of skull bone on both the left and the right side. Thus, the prosecution has been able to prove that the death is homicidal as it is no one's case that it is accidental death.

12. Now, the next question which would fall for consideration is who is the person who had given the fatal blow.

13. The maximum witnesses who are witnesses to the fact are hearsay witnesses. They had heard about the said incidence but they had not seen the actual assault. The person who had seen the actual assault is none but the wife of the deceased, who is informant (P.W.-7).

14. When we go through her evidence, we find that she

stated that the deceased returned from the field after transporting paddy of others when, after some argument, this appellant took the bamboo which was attached with the bullock cart and suddenly struck the deceased on his head. From her evidence, we find that it is an admitted fact that there was no past enmity and suddenly the incident had occurred. Though, in her evidence, she has omitted the fact which she has narrated in the F.I.R. to the extent that this deceased has questioned as to why his paddy was not been transported and why the deceased was transporting the paddy of others and thereafter assaulted, but we find that this appellant was annoyed because of the aforesaid act of the deceased of not transporting his paddy. Thus, in state of annoyance, this assault was made.

15. Thus, from the aforesaid evidence, it is clear that it is this appellant but none else who had assaulted the deceased.

16. Now, the crucial question which will fall for our consideration is whether this case would come under the purview of Section 302 IPC or not?

17. To bring the case within the ambit of Section 302 IPC, the prosecution has to come with a definite material to suggest that the act falls within Section 300 of the IPC. Section 300 IPC defines murder but there are exceptions. Exception-4 of Section 300 IPC suggests that culpable homicide is not murder if it is committed without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.

18. In this case, we find that this appellant became agitated as his crop was not being transported and in a heat of passion, he gave a blow on the head of the deceased with the bamboo which was attached with the bullock cart. It is an admitted case of the prosecution that he did not bring any weapon to attack the deceased. The bamboo was there itself. There is no evidence of repeated blow. Further, from the evidence, it is also clear that there was no previous enmity amongst the parties. Thus, it can be concluded that in a sudden

heat of passion this incident had taken place. We also find that there is no allegation that this appellant has any other history of committing offence.

19. We thus, come to a conclusion that this is not a case under Section 302 IPC and rather it will fall within Exception-4 of Section 300 of the IPC.

20. After holding that this case is not covered under Section 302 IPC, we are of the opinion that this case will fall within Section 304 Part-II of the IPC. Thus, we hereby convert the conviction of the appellant from Section 302 IPC to Section 304 Part-II IPC and also modify the sentence and convert the same to the period which he has already undergone. The appellant thus, is directed to be released immediately, as he has already remained in custody for 11 years 08 months.

21. Thus, the judgment of conviction dated 09.06.2017 and order of sentence dated 13.06.2017, passed by learned District & Additional Sessions Judge-I, Dumka, in Sessions Trial No.188 of 2013, stands modified accordingly.

22. Accordingly, this Criminal Appeal stands partly allowed.

23. The Trial Court Record be transmitted back to the Court below.

(ANANDA SEN, J.)

(GAUTAM KUMAR CHOUDHARY, J.)

HIGH COURT OF JHARKHAND, RANCHI Dated:- 03/09/2024 NAFR / Prashant