Shib Charan Alda vs The State of Bihar (now Jharkhand)

Pradeep Kumar, J.—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.

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 u/s 304 Part I of the Indian Penal Code is bad in law and fit to be altered.

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.

After hearing both the parties and going though 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 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.

On the basis of the said Fardbeyan the police registered a case u/s 302 of the Indian Penal Code and after investigation police submitted charge-sheet against the appellants.

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 u/s 304 Part I of the Indian Penal Code.

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 and 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 a Alda were own brother from one mother and two fathers. The accused-appellant, Shib Charan 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, Sikandar 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 jus t 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

P.W.5, Dr. Aran 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 oae 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 1 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.

In my opinion, there was no intention to cause death and as such the conviction of the appellant u/s 304 Part I is altered to that u/s 304 Part II of the Indian Penal Code.

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 sentence u/s 304 Part I of the Indian Penal Code. The appellant is on bail, he is discharged from the bondage of his bail bond.

With the aforesaid alternation in the conviction and sentence, the appeal is allowed in part.