CRIMINAL APPEAL (DB) No. 1504 of 2003
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Against the impugned judgment of conviction dated 25.08.2003 and
order of sentence dated 28.08.2003 respectively passed in S.T. No. 145 of
1999 by Shri Binod Prasad Singh, Additional Sessions Judge, Fast Track
Court-I, Chaibasa.
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Gobind Lugun .... .... Appellant
Versus
The State of Jharkhand .... .... Respondent
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For the Appellant : Ms Indu Parashar, Advocate.
For the State : Ms. Lily Sahay, A.P.P.
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PRESENT
THE HON'BLE MR. JUSTICE NARENDRA NATH TIWARI
THE HON'BLE MR. JUSTICE PRASHANT KUMAR
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By Court: - The appellant was charged for committing murder of his brother
Laksho Lugun. By the impugned judgment, the learned court below
has held him guilty for the offence under Section 302 I.P.C. and
convicted him. He has been sentenced to undergo rigorous
imprisonment for life and to pay a fine of Rs. 2, 000/- and in default, to
undergo rigorous imprisonment for three months.
2. The prosecution was initiated on the statement made by John
Lugun on 23.10.1998 at about 1:00 p.m.
3. The prosecution case, in short, is that on 08.10.1998 at about
2:00 p.m. Gobind Lugun, brother of the deceased, assaulted the
deceased with an axe on his shoulder and neck and the deceased
sustained serious injuries. He was brought to the Rajendra Medical
College Hospital (R.M.C.H.), Ranchi for his better treatment on
09.10.1998. In course of treatment, he succumbed to injuries and died
on 21.10.1998 in the hospital. On the basis thereof, the case was
registered under Section 302 I.P.C. The Bariyatu Police sent the
fardbeyan, inquest report and post-mortem report to Sonua Police
Station, as the deceased was assaulted within the jurisdiction of
Sonua Police Station. Sonua Police registered a formal F.I.R. under
Section 302 I.P.C. against the appellant and took up investigation.
2 (Cr.A (DB) No. 1504 of 2003)
4. On completion of investigation, police submitted charge sheet
against the appellant and on that basis S.D.J.M., Porahat at Chaibasa
took cognizance of the offence under Section 302 I.P.C. against the
appellant and committed the case to the Court of Sessions.
5. The appellant pleaded not guilty and claimed to be tried. In
order to prove the said charge against the appellant, the prosecution
altogether examined nine witnesses:-
P.W.-1, John Lugun @ Jawan Lugun-the informant and a co-villager;
P.W.-2, Sukwari Lugun-wife of the deceased; P.W.-3, Mangri Lugun-
aunt of the deceased; P.W.-4, Birsa Lugun-a co-villager; P.W.-5-
Sukhram Lugun-another co-villager (declared hostile); P.W.-6, P.W.-7
and P.W.-8, were co-villagers; P.W.-9 is the doctor, who conducted
autopsy on the dead body of the deceased Laksho Lugun. The
Investigating Officer is not examined in this case.
6. P.W.-1, John Lugun, the informant, has supported the
prosecution case and the version made in the fardbeyan. P.W.-2,
Sukwari Lugun, the wife of the deceased, is an eye-witness to the
occurrence. She has stated that while she was harvesting paddy crop
in the nearby field and her husband was grazing cattle, there was a
quarrel between the deceased and the appellant. The appellant then
gave an axe blow on the neck of her husband Laksho Lugun causing
incised cut wound on his neck. He fell down. She raised alarm.
Several villagers who were working in nearby fields assembled. The
accused appellant in the meanwhile fled away towards forest. The
villagers chased but they could not catch hold of him. She with the
help of co-villagers Naresh Lugun and John Lugun brought her injured
husband home and thereafter they took him to R.M.C.H., Ranchi for
treatment. In course of treatment in the hospital, he died after some
days. P.W.-3, Mangri Lugun, a witness to the fardbeyan, has stated
that on that day, on hearing the alarm raised by the deceased wife,
she arrived there and saw this appellant fleeing away after assaulting
Laksho Lugun on his neck with an axe. P.W.-4, Birsa Lugun, has
deposed that he reached the place of occurrence after hearing the
alarm, he saw Laksho Lugun injured and lying on the ground with
blood oozing out from his neck and shoulder. He saw Gobind Lagun
fleeing away from there. He has stated that the injured Laksho Lugun
told him that his brother Govind Lugun assaulted him with an axe.
3 (Cr.A (DB) No. 1504 of 2003)
P.W.-5, Sukhram Lugun, supported the occurrence but he stated that
the deceased had not told him the name of the accused. He was
declared hostile. P.W.-6, Naresh Lugun, has stated that on hearing the
alarm raised by the wife of the deceased, he went to the place of
occurrence and saw Laksho Lugun injured and blood oozing out of his
neck. He stated that Laksho Lugun told him that his brother Govind
Lugun assaulted him with an axe. The deceased wife Sukwari Lugun
also told him that Govind Lugun had assaulted her husband. P.W.-7,
Jiwan Lugun and P.W.-8, Soma Lugun stated that they had gone to
the Laksho Lugun to see him and they were told by Sukwari Lugun
that Govind Lugun assaulted his husband with an axe. They saw
Laksho Lugun injured with serious cut wound on neck. P.W.-9, Dr.
Tulsi Mahto, conducted post-mortem examination on the dead body of
the Laksho Lugun. He has found incised wound 6 cm X 2.5 cm X 5
cm on the left shoulder front adjoining the root of left side neck. He
also found cut injury on the left first rib and upper lobe of left lung with
presence of blood and blood clot in the left side of the chest cavity.
According to him, the wound on the neck was ante-mortem caused by
heavy sharp cutting weapon such as an axe. The death was due to
hemorrhage and shock.
7. Learned trial court, on appraisal of the said evidences on record,
has relied on the evidence of P.W.-2 Sukwari Lugun, who is an eye-
witness, the testimonies of P.W.-3, P.W.-4 and the evidence of doctor
(P.W.-9) and held the appellant guilty for the charge under Section
302 I.P.C. and convicted him as aforesaid.
8. The appellant has assailed the impugned judgment mainly on
the ground that there was a delay of about 15 days in lodging the
F.I.R. and there was no proper explanation for the delay. The I.O. has
not been examined by the prosecution which has caused serious
prejudice to the appellant. There are contradictions in the evidences
of prosecution witnesses. M/s Indu Parashar, appearing as Amicus
Curiae submitted that even if the prosecution case is accepted at its
face value, it is clear that there was a sudden quarrel between the two
brothers Gobind Lugun and Laksho Lugun in a heat of passion and the
appellant gave a blow of axe on the shoulder of Laksho Lugun. The
intention was not to kill him. There was no repetition of blow. It is not a
case of murder and the offence under Section 302 I.P.C. is not
4 (Cr.A (DB) No. 1504 of 2003)
constituted. The case comes within the ambit of Exception (4) of
Section 300 of the I.P.C. punishable under Section 304 Part-I of the
I.P.C. The appellant has remained in custody for more than ten years
and has already suffered sufficient punishment.
9. Learned A.P.P., on the other hand, supported the impugned
judgment. It has been submitted that the prosecution has fully proved
the fatal assault given by the appellant on the deceased. P.W.-2 – the
eye-witness and other prosecution witnesses have supported the
prosecution case. The ocular testimony has been corroborated by the
medical evidence of P.W.-9. Learned A.P.P., however, fairly admitted
that from the facts and circumstances of the case, it does not appear
that the appellant had intention to commit murder of the deceased
Laksho Lugun. The blow was not repeated. However, the blow was on
vital part which caused the death of the deceased.
10. After hearing learned Amicus Curie and learned A.P.P., we also
scrutinized the evidences on record. We find from the evidence of
P.W.-2 that she is an eye-witness and saw the appellant giving an axe
blow on the shoulder of the deceased. P.W.-4 Birsa Lugun, although
arrived at the place of occurrence later on, he saw Laksho Lugun lying
on the ground and blood oozing out of his neck and shoulder. He saw
Gobind Lugun fleeing away from the place. Laksho Lugun told him
that his brother Gobind Lugun has injured him with an axe. P.W.-6
also went to the place of occurrence later on. He saw Laksho Lugun
in injured condition and blood oozing out from his neck. He has stated
that Laksho Lugun told him that his brother Gobind Lugun had
assaulted him with an axe. The evidence of P.W.-2 – the eye-witness
and the evidence of P.W.-4 and P.W.-6, to whom the deceased had
told about the assault given by his brother Gobind Lugun is relevant
and admissible evidence under Section 32 of the Evidence Act read
with the medical evidence of P.W.-9 go to establish that the accused-
appellant inflicted severe axe blow on the vital part of the body of
Laksho Lugun near the neck which ultimately caused his death.
Learned court below has rightly held the appellant guilty of giving the
said blow which caused homicidal death of the deceased. We,
therefore, found no infirmity to that extent of the finding of the learned
court below.
5 (Cr.A (DB) No. 1504 of 2003)
11. However, we find substance in the submission of learned
Amicus Curie that even if the entire allegation of the prosecution is
accepted at it is, it attracts Exception (4) of Section 300 I.P.C. From
the evidences of the witnesses, it is manifest that there was sudden
quarrel between two brothers in the field and in the heat of passion,
the accused appellant gave axe blow on the shoulder of the deceased.
The blow was not that grievous to cause death instantaneously. He
did not repeat the blow. The deceased remained alive for about two
weeks, thereafter, in course of treatment, he died on 21.10.1998. The
said position is not disputed. We find that a single blow given by the
appellant, on the shoulder of the deceased was not intended to take
away the life of the deceased. He did not repeat blow and did not act
in a cruel manner.
12. In view of the above, though, we find the accused-appellant
guilty of committing homicidal death of the deceased by giving him an
axe blow on his shoulder, in our considered view it does not amount to
committing murder of the deceased. The case falls within the
Exception (4) of Section 300 I.P.C. and the appellant is held guilty of
committing an offence punishable under Section 304 Part-I of the
I.P.C.
13. For the reasons aforesaid, we modify the conviction of the
appellant and convert the same into the Section 304 Part-I of the
I.P.C.
14. We are informed that the appellant has been in custody since
28.10.1998 i.e. for more than ten years, we modify the sentence of
the appellant, reducing the same to the period undergone by him.
15. In the result, this appeal is dismissed but with the said
modification in the impugned judgment and in conviction and sentence
of the appellant. Since, the appellant is in custody, he is directed to be
set at liberty forthwith, if not wanted in any other case.
(Narendra Nath Tiwari, J)
(Prashant Kumar, J.)
Jharkhand High Court, Ranchi
Dated 19 /05/2009
Sunil/NAFR