Cr. Appeal No. 219 of 2000
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Against the judgment of conviction and order of sentence dated 18.3.2000 passed by
Shri Tarkeshwar Prasad, Sessions Judge, Singhbhum West at Chaibasa in Sessions Trial
No. 30 of 1997.
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Shib Charan Alda .....................Appellant
-Versus-
The State of Bihar ( now Jharkhand)....Respondent.
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For the Appellant: Mr. Sagarmay N. Banerjee, Advocate.
For the State :Mr. I. N. Gupta, APP
PRESENT
HON'BLE MR. JUSTICE PRADEEP KUMAR
By Court,, This appeal is directed against the judgment of conviction and
order of sentence dated 18.3.2000 passed by Shri Tarkeshwar Prasad,
Sessions Judge, Singhbhum West at Chaibasa in Sessions Trial No. 30 of
1997, by which judgment he found the appellant guilty under Sections 304
Part I of the Indian Penal Code and sentenced him to undergo R.I. for 10
years.
2. It is submitted by the learned counsel for the appellant that it will
appear from the statement given in the Fardbeyan by the informant-P.W.1
as also the statement of the three eye witnesses that the appellant, Shib
Charan Alda had no intention to cause the death of the deceased, Joto
Alda, who was his elder brother from the same mother, but since he was
abusing and assaulting his wife. Suddenly, the accused-appellant came out
with a sword in his hand and gave a blow which hit the neck of the
deceased and he died. Although, it could be gathered that he had
knowledge, but since there was no intention and as such his conviction
under Section 304 Part I of the Indian Penal Code is bad in law and fit to
be altered.
3. Learned counsel for the State has opposed the prayer, but admits
that this accused-appellant had initially no intention to commit the murder
of the deceased, Jota Alda.
4. After hearing both the parties and going through the record, I find
that the prosecution case was started on the basis of a Fardbeyan given by
informant, Nandi Kui-P.W.1 wife of the deceased, Jota Alda on
26.11.1996
at about 4.30 P.M. in the evening stating therein that in the last
night at about 8 P.M. when the wife of this accused-appellant, Shib
Charan Alda was talking with the wife of Chhota Manki at her Verandah,
then her husband, Jota Alda went towards the wife of Shib Charan Alda
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and asked her as to why she abused them. Thereafter, a fight took place
between them and the deceased gave two slaps to the wife of the appellant,
Shib Charan Alda. Whereupon, this accused-appellant, Shib Charan Alda
came running from the house with a sword in his hand and without asking
anything gave a sword blow on the neck of the deceased, by which he fell
down in the courtyard and at that time the wife of the deceased and her
son was also there, but they could not go there in order to save him due to
fear of the sword. She also stated that earlier they used to collect mahua
flower in front of the house of this accused-appellant, Shib Charan Alda
with the permission of Gosa Alda, nephew of this accused-appellant, Shib
Charan Alda. She further stated that due to that enmity the accused-
appellant has caused sword blow on the neck of the deceased, resulting
into his instantaneous death.
5. On the basis of the said Fardbeyan the police registered a case
under Section 302 of the Indian Penal Code and after investigation police
submitted charge-sheet against the appellants.
6. Since the case was exclusively triable by a Court of Sessions
the learned Chief Judicial Magistrate after taking cognizance of the
case, committed the same to the Court of Sessions and the case was
finally tried by Sessions Judge himself, who convicted the appellant
under Section 304 Part I of the Indian Penal Code.
7. It appears that in course of trial, the prosecution has examined 7
witnesses. Out of which P.W.1, Nandi Kui, informant and wife of the
deceased, P.W.2, Sikandar Alda, son of the deceased, P.W.3, Lembo Kui,
wife of Chhota Manki in whose presence the occurrence took place,
P.W.4, Sau Buriulia, a witness of inquest, P.W.5, Dr. Arun Kumar Gupta,
who conducted the post-mortem, P.W. 6, Madhsudhan Alda, Manki of the
village and P.W.7, Shankarlal Chourasia, a formal witness.
8. It is important to note that P.Ws. 1, 2 & 3 are the eye witness of the
case. P.W.1, Nandi Kui, informant and wife of the deceased stated in
Court that the occurrence took place on the Sunday night and there was no
fight from before between her husband and the wife of accused-appellant,
Shib Charan Alda, but in the night of Monday after taking food this
accused-appellant, Shib Charan Alda gave a sword blow to her husband
causing his instantaneous death. Wife of this accused-appellant Shib
Charan Alda was abusing her husband, hence the occurrence took place.
She identified the accused-appellant in Court.
At para 3, of her cross-examination, she admitted that the accused-
appellant, Shib Charan Alda and the deceased, Jota Alda were own brother
from one mother and two fathers. The accused-appellant, Shib Charan
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Alda was younger brother of the deceased and the deceased, Jota Alda was
elder brother of this accused-appellant and as per Ho Tribal custom it is an
offence to touch the wife of younger brother. She denied that only because
her husband has assaulted wife of this accused-appellant the occurrence
took place. She also stated, in her cross-examination, that the occurrence
took place in the house of Chhota Manki in presence of her son, Sikandar
Alda and wife of Chhota Manki. At para 6 she also admitted that her
husband had gone to the place of occurrence, it was moonlit-night. Since
wife of the accused-appellant, Shib Charan Alda was abusing her
husband-deceased, who was sitting in the Angan of Chhota Manki and she
saw this accused-appellant giving a sword blow on the neck of her
husband-deceased. She also admitted that her husband-deceased is the
elder brother and still he being the wife of younger brother was rebuking
him, but there was nobody touch between them.
P.W.2, Si219kandar Alda, son of the deceased has also stated that
this accused-appellant, Shib Charan Alda gave a sword blow on the neck
of his father, Jota Alda, causing his instantaneous death. He identified the
accused-appellant in Court.
At para-4, in his cross-examination, admitted that there was fight
going between the wife of this accused-appellant, Shib Charan Alda and
his father (deceased) and nobody else was involved in the fight. He further
stated that there was fight only by mouth and there was no assault by hand
or leg. He had gone to the place of occurrence just behind his father he had
seen this accused-appellant, Shib Charan Alda giving sword blow on the
neck of his father.
P.W.3, Lembo Kui, wife of Chhota Manki, who is an independent
witness, in whose presence the occurrence took place. She stated that on
the date of occurrence at about 8 P.M. in the night she was talking with the
wife of the accused-appellant, Shib Charan Alda then, the deceased, Jota
Alda came there and started assaulting the wife of accused-appellant with
slaps. Then, this accused-appellant, Shib Charan Alda came and asked him
as to why he is assaulting his wife and gave a sword blow on the neck of
the deceased. She identified the accused in Court.
In her cross-examination, she admitted that the deceased, Jota Alda
was making Hullah and was soughting at the wife of this accused-
appellant, Shib Charan Alda and even said that he will commit her murder.
She also stated that as per Ho Tribal it is an offence to touch of younger
brother then can only take but cannot touch.
P.W.4, Sau Buriulia, is a formal witness of inquest
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P.W.5, Dr. Arun Kumar Gupta, has proved the post-mortem report,
which is marked as Ext. 1. He found the following injuries on the person
of the deceased.
(i) Incised wound 6″ x 3″ x 6′-involving mandible and chin and
great muscles of neck situated on front and right side;
(ii) Mandible fracture involving some mental area and upper part
of the neck including great neck vessels.
The death was caused due to shock and haemorrhage. The injuries
caused by sharp cutting weapon like sword. Time elapsed since death-24
to 36 hrs. He further opined that there was only one injury on the person of
the deceased, which was sufficient to cause death.
P.W.6, Madhsudhan Alda, Manki of the village, has also supported
the prosecution case and proved his signature on the Fardbeyan.
P.W.7, Shankarlal Chourasia, a formal witness. .
9. Thus, from the evidences of these three eye witnesses and specially
the evidence of the independent witness-P.W.3, Lembo Kui, wife of
Chhota Manki, it is clear that the wife of this accused-appellant, Shib
Charan Alda was talking with Lembo Kui, wife of Chhota Manki in her
Varanda where the deceased, Jota Alda came and asking the wife of this
accused-appellant as to why she abused me and then assaulted her with
slaps as he was making hot exchange and also said that he will kill.
Whereupon, this accused-appellant who was inside his house came
running with a sword and gave a single blow on the deceased.
10. From the evidences, it is clear that although the accused-appellant
cannot be alleged to have knowledge that giving blow on the neck of the
deceased will be fatal and the deceased will die, but he had knowledge
regarding intention to commit murder. More so, it has been admitted by
the informant and also P.W.3 that in their tribe it is an offence to touch the
wife of younger brother and according to the statement of the informant in
Fardbeyan as also the statement of eye witness-P.W.3 he touched the
younger’s wife and assaulted her with slaps, which created provocation
upon of the appellant, who come running with a sword and gave blow on
the person of the deceased.
11. In my opinion, there was no intention to cause death and as such
the conviction of the appellant under Section 304 Part I is altered to that
under Section 304 Part II of the Indian Penal Code.
12. It appears from the lower court record as submitted by the learned
counsel for the appellant that the appellant was in custody since 27th
November, 1996 till 4th September, 2000 when he was granted bail by this
Court in Cr. Appeal. Thus, he has remained in jail for about 4 years,
already undergone by him during investigation and trial, is sufficient
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sentence under Section 304 Part I of the Indian Penal Code. The appellant
is on bail, he is discharged from the bondage of his bail bond.
13. With the aforesaid alternation in the conviction and sentence, the
appeal is allowed in part.
[ Pradeep Kumar, J] Jharkhand High Court, Ranchi The 2nd February, 2010 Jk/NAFR