Criminal Appeal (DB) No. 127 of 1992(R)
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Against the judgment and order of conviction and sentence dated
4.7.1992
passed by Smt. Shakuntala Sinha, 7th Additional Sessions Judge,
Ranchi in Sessions Trial No. 126 of 1988.
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Kirto alias Kisto Chit Munda
Alias Chritochi alias Kirto Tiru (Munda) … … Appellant
Versus
The State of Bihar (now Jharkhand) … … Respondent
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For the Appellant : Mrs. Lily Sahay, Advocate
For the Respondent: Mr. Shekhar Sinha, Additional Public Prosecutor.
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PRESENT
THE HON’BLE MR. JUSTICE R. K. MERATHIA
THE HON’BLE MR. JUSTICE AJIT KUMAR SINHA
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R. K. Merathia &
Ajit Kumar Sinha, JJ. This appeal has been directed against the judgment dated 4.7.1992
passed by 7th Additional Sessions Judge, Ranchi in Sessions Trial No. 126
of 1988 convicting the appellant under Sections 302 and 201 of Indian
Penal Code and sentencing him under Section 302 Indian Penal Code to
undergo rigorous imprisonment for life and for the offence under Section
201 of Indian Penal Code to undergo rigorous imprisonment for five
years. Both the sentences were ordered to run concurrently.
2. Prosecution case in short is that, the informant Puni Mundain, wife
of the deceased Kaila Munda gave a fard beyan before the police on
6.7.1987 at about 3.30 P.M. that on the previous day, her husband, her
nephew Etwa and villager, Nago Munda came back home after selling
Meat with the unsold Meat. She cooked it and all were taking their
meals. In the meantime, the appellant came in intoxicated state and
started abusing them that they are not giving Meat to him. On this, she
gave him some Meat to eat and thereafter he went back. Then her
nephew Etwa Munda and villager Nago Munda went back to their home.
About one hour thereafter, i.e. at about 11-12:00 at night, the appellant
again came to her house. He was heavily drunk and started assaulting
her husband by fists and slaps. When she intervened, he assaulted her
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also by fists. Due to fear, her husband ran out from the house. The
appellant chased and assaulted him with fists and slaps and killed him by
strangulation and then concealed his dead body in the well. She raised
alarm, but nobody came. In the morning, the villagers searched out the
body of her husband from the well. At the time of the alleged occurrence,
her younger sister Badli Mundain and sister’s daughter Sheelwati Kachap
were present who had seen the occurrence. On such ferdbayan F.I.R. was
drawn.
3. Charge-sheet was submitted, cognizance was taken and charges
were framed under Section 302 read with Section 201 of Indian Penal
Code. The appellant pleaded not guilty and claimed to be tried. His
defence was that the dead body of the deceased was found in the same
well in which his son had also fallen and died and so it might be that the
deceased out of sorrow and grief had jumped into the well and the
appellant had falsely been implicated in this case.
4. Counsel for the appellant submitted that appellant had no
intention to kill and, at best, it is a case under Section 304 Part II I.P.C.
5. Counsel for the State supported the impugned judgment and
submitted that prosecution has proved its case.
6. The prosecution examined total 9 witnesses. P.W. 1 is the informant
himself; P.Ws. 2 and 3 are hearsay witnesses; P.Ws. 4, 6 and 8 are
tendered witnesses; and P.Ws. 7 and 9 are formal witnesses. The doctor
has not been examined. However, the post mortem report was proved.
According to the Post Mortem report, the cause of death was due to
shock heamorrhage and cardiovascular failure due to asphyxia caused
due to strangulation; – the thyroid bone and cartilage was found
fractured; – both the lungs were swollen with multiple haemorrhagic
spots.
7. Thus, the version of the informant is corroborated by the post
mortem report to the extent that the appellant caused injuries on the
deceased by fists, slaps and legs and strangulated him due to which he
died. From the other materials on record, it is also clear that after the
deceased died, he was thrown into the well by the appellant. But the
question is: whether the appellant has committed a crime punishable
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under Section 302 or a crime punishable under Section 304 of Indian
Penal Code.
8. Admittedly, the appellant was heavily drunk at the time of alleged
incident, and he did not use any weapon. Thus, it will not be safe to hold
that the appellant had the intention and motive to kill the deceased.
Moreover, the deceased was aged about 65 years. It has also come in
evidence that the well was on the ground level without any barrier. The
prosecution has not been able to prove the charges under Section 302 and
201 of the Indian Penal Code. After taking into consideration the
materials on record, we are inclined to convert the conviction under
Section 304 Part II of Indian Penal Code.
9. On the question of sentence, it appears that the appellant was
granted bail in the year 1992 after remaining in jail for about 5 years. It
further appears that the appellant is a rustic Adiwasi and this was his
first offence. In these circumstances, he is sentenced for the period
already undergone by him in jail. He is discharged from the liabilities of
his bail-bond.
10. In the result, this appeal is allowed in part to the extent indicated
above.
(R. K. Merathia, J)
(Ajit Kumar Sinha, J)
Jharkhand High Court,
Ranchi.
The 15th December, 2008.
Ravi Shekhar/Cp.3.