Jharkhand High Court
Barai Hembrom vs State Of Jharkhand on 24 September, 2024
Author: Ananda Sen
Bench: Ananda Sen
Criminal Appeal (D.B.) No. 2251 of 2017
Barai Hembrom, S/o Late Ram Hembrom, R/o Village Siyaljoda, PO &
PS Hatgamharia, Distt. West Singhbhum at Chaibasa
... ... Appellant
-Versus-
State of Jharkhand ... ... Respondent
(Arising out of Judgment of Conviction dated 17.08.2017 and
Order of Sentence dated 19.08.2017 passed by the Additional
Sessions Judge-I, West Singhbhum at Chaibasa in Sessions Trial
No. 09 of 2013)
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For the Appellant : Ms. Vani Kumari, Amicus Curiae
For the State : Mr. S.K. Srivastava, A.P.P.
----
PRESENT: SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
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JUDGMENT
By Court:
Heard the parties.
1. The appellant has preferred this appeal against the Judgment of Conviction
dated 17.08.2017 and Order of Sentence dated 19.08.2017 passed by the
Additional Sessions Judge-I, West Singhbhum at Chaibasa in Sessions Trial
No. 09 of 2013, whereby the appellant has been held guilty and convicted
and sentenced for the offence punishable under Section 302 of Indian Penal
Code.
2. Informant Gulia Hembrom is the informant of the case. As per the written
report on 06.09.2012 he was working in his field when his cattle suddenly
entered the field of Singhrai Hembrom and grazed the tomato plants, for
which he agreed to compensate him by money. At the same time cattle of
Barai Hembrom (appellant) also grazed the field of Singhrai Hembrom.
Appellant took offence at the informant for agreeing to pay compensation
and there ensued hot exchange between them and he inflicted two farsa
blows at him resulting in critical head injuries.
3. On the basis of the written report, Hatgamharia P.S. Case No. 24 of 2012
was instituted against the appellant under Sections 341,323, 324 and 307 of
the IPC. Informant died while being taken to the hospital and on
investigation charge-sheet was submitted under Sections 302 of IPC. The
cognizance of the said offence was taken and the appellant was put on trial
for committing the murder of the informant. Court framed charge for
offence punishable under Section 302 of IPC and the appellant was put on
trial.
4. Seven witnesses were examined on behalf of the prosecution and some
documents were also exhibited. After prosecution evidence, statement of the
accused was recorded under Section 313 of Cr.P.C.
5. Learned counsel for the appellants submits that the entire incident occurred
at the spur of moment and thus, the appellant cannot be held guilty for the
offence under Section 302 of IPC, as the case will come within Exception 4
to Section 300 of the IPC.
6. Learned counsel for the State has defended the impugned judgment of
conviction and order of sentence.
7. Prosecution case rests on the written report (Ext-2) of the informant which
can be treated as dying declaration, as the informant succumbed to his
injuries after lodging the FIR.
8. None of the witness claim to be eye-witness to the incidence, except PW-3
who is the son and was present at the place of occurrence and grazing the
cattle. He has stated that one year ago, there was an altercation regarding
grazing of tomato crop by the Ox due to which his father had to pay penalty
to Singroy Hembrom. Paying of compensation was not to the liking of the
appellant and he entered into altercation with him and then gave two blows
by the 'Baluwa' as a result while being taken to Chaibasa he died of the
injuries. He has also deposed that statement of his father was recorded in the
police station. There is virtually no question put to him in the cross-
examination on the factum of incidence. He has also not been confronted
with his earlier statement given to police under Section 161 of the Cr.P.C.
He has denied the suggestion that he was not an eye witness to the
incidence. There is no reason to disbelieve his account which is
corroborated by the written report lodged by the deceased, which after his
death becomes dying declaration.
9. The doctor, who had conducted the postmortem, has been examined as
PW 7. He deposed that he conducted the postmortem and found the
following injuries on the person of the deceased:-
i. Black colour bruise over right soldier 3" x 1".
ii. Loose over Chest 6" x 1".
iii. Incised wound on head two in number measuring 5" x 2"x deep to
cranial cavity.
He found blood and blood clot present inside cranial cavity brain matter
injured. He opined that the death was due to head injury and hemorrhage
caused by sharp cutting object. He also opined that the above ante-mortem
injuries were sufficient in ordinary course of nature to cause death. He has
proved the postmortem report and marked as Ext.5.
10.PW 6 is the Investigating Officer who stated that he has proved the written
report and FIR, marked as Ext. 2 and 3 respectively. He has proved the
place of occurrence. He prepared the inquest report of the deceased which
was marked as Ext.4.
11.Thus, from the evidence adduced by the prosecution, we find that informant
had given his statement about the incidence which is the FIR of the case.
After the said statement he was referred for treatment and on way he
succumbed to the injuries. Thus FIR (Ext-2) becomes Dying declaration,
wherein it has been stated that on trivial incidence appellant had inflicted
two axe blows to him. This is further corroborated by the testimony of PW-
2. Thus the prosecution has proved the factum of incidence in which the
appellant had inflicted two axe blows, resulting in death of the informant.
12.Now the next question, which falls for consideration is whether on the
proved facts, charge under Section 302 of IPC is proved beyond the shadow
of all reasonable and probable doubt. In Pulicherla Nagaraju @ Nagaraja
Reddy v. State of A.P., (2006) 11 SCC 444 it has been held as under:
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."
13. In the present case, appellant had no past enmity with the deceased.
Incidence took place on the spur of moment on a trivial issue. In the sudden
fight appellant inflicted two blows with axe, which is usually carried by the
farmers in jungle area, resulting in death of the informant. The assault was
not pre-planned or premeditated. Considering the overall facts and
circumstance of the case, Exception- 4 of Section 300 of IPC will be
applicable in this case and, therefore on the basis of evidence on record,
offence under Section 304 Part II of IPC and not under Section 302 of IPC
will be made out. Thus we convert the conviction from Section 302 of IPC
to that of under Section 304 Part-II of IPC.
14.In the result,
a. We set aside the conviction under Section 302 of IPC and convict this
appellant under Section 304 Part II of IPC.
b. Appellant has already an imprisonment for more than 12 years.
Considering the age of the appellant and overall facts and circumstances
of the cases, he is sentenced to the period already undergone, under
Section 304 Part II of IPC.
This criminal appeal is dismissed with the aforesaid modification in
finding and sentence.
Pending I.A., if any, stands disposed of.
Let the Trial Court Records be sent back to the Court concerned
forthwith along with a copy of this judgment.
Before parting with this Judgment, we must record that we have been
ably assisted by Ms. Vani Kumari, learned amicus curiae. We direct the
Secretary, High Court Legal Services Committee, to make the payment of
the prescribed remuneration to the learned amicus curie. Let a copy of this
Judgment be sent to the Secretary, High Court Legal Services Committee,
for the needful.
(Ananda Sen, J.)
(Gautam Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated, the 24th September, 2024
AKT/Satendra
