Dabui Burh vs State Of Jharkhand

Shree Chandrashekhar, J

The sole appellant was named as accused by Chambari Gope, wife of Benta Gope, in her fardbeyan recorded on 03.05.2006, on the basis of which Sonua P.S. Case No. 28 of 2006 was registered under section 302 IPC against him.

In her fardbeyan, the informant has stated that in the afternoon of 02.05.2006 Dabui Burh, the accused, came to her house and accompanied her husband to market. When they came back they started quarreling and before she could understand the real cause, Dabui Burh assaulted her husband with a Tangi on his head. The informant has claimed that her husband has died on the spot.

During the trial, the prosecution has examined seven witnesses; the informant is P.W.1. The village Munda and Manki were also examined during the trial.

Dr. Birendra Kumar Singh-P.W.7, who has conducted the post-mortem examination, has found one incised wound on right side of parietal area of scalp 2½"x1"x3" deep. The brain matter was coming out and blood stains were present over hairs and clothes. He has also observed bruise over left side of chin of Benta Gope of the dimension 3" x 2". He has seen blood mixed froth coming out from mouth.

The doctor has opined that death has occurred due to the head injury caused by a sharp-cutting weapon. According to the doctor, the age of the wound found on the head of Benta Gope was between 24 hrs. to 48 hrs.; the postmortem examination was held on 04.05.2006.

In her examination-in-chief, the informant-P.W.1 has stated that she was at home when the appellant had called her husband. She further says that may be at the time of altercation both were intoxicated and perhaps that is the reason her husband has been killed. She has asserted that the appellant has assaulted her husband with Tangi in her sight. In her cross-examination, she has reiterated that she has herself seen the appellant killing her husband.

The other prosecution witnesses are hear-say witnesses, but they have deposed that they came to know about murder of Benta Gope by Dabui Burh with a Tangi.

The learned Judge himself has held that P.W.2, P.W.3, P.W.5 and P.W.6 are hear-say witnesses.

The Investigating Officer of the case was not examined by the prosecution during the trial.

Mr. Prem Pujari Roy, the learned Amicus has contended that admission of the informant that the Investigating Officer has not taken her thumb impression and she does not know what statement the police has recorded would create serious doubt on the veracity of the prosecution's case.

We find that in absence of the Investigating Officer, the defence was rendered handicapped to cross-examine him with reference to the aforesaid statement of the informant. However, on this basis alone conviction of the appellant cannot be held bad in law. In her cross-examination, the informant has reiterated that she has seen the occurrence and she claims that she recognizes the appellant who is a co-villager. The doctor-P.W.7 has held that death of Benta Gope has been caused due to head injury caused by a sharp-cutting weapon, however, the prosecution has not produced the crime weapon in the trial. The defence set up by the appellant is that Benta Gope who was in drunken condition has died due to fall on a rocky surface. In his cross-examination, the doctor has stated that injuries found on Benta Gope can be caused due to fall on rocky plain.

In the above state of evidence, we find that the prosecution has not conclusively proved the charge under section 302 I.P.C framed against the appellant.

Only one incised wound has been found on the right side of the parietal region of Benta Gope. The extent of the injury was of the dimension of 2 ½"x1"x 3" deep. The informant has said that her husband and the appellant both were in drunken condition and may be that was the reason an altercation took place between them. The evidence of the informant rules out pre-meditation. The appellant has not acted with cruelty is apparent from the fact that only one injury has been found on Benta Gope. From the evidence of the informant it also transpires that a sudden fight took place between her husband and the appellant and in the heat of passion the appellant has inflicted one Tangi blow on Benta Gope.

Section 300 I.P.C provides that culpable homicide is not murder under the circumstances provided thereunder. Section 300 I.P.C creates five exceptions to the main provision. Exception 4 to section 300 I.P.C is attracted when the accused has assaulted the deceased in a sudden fight in the heat of passion, without pre-meditation and, of course, not in bad faith.

From the evidences laid by the prosecution, particularly, the evidence of the informant, we find that the act of the appellant falls under Exception 4 to section 300 I.P.C and, accordingly, he is found entitled for the benefit under Exception 4 to section 300 I.P.C.

Now, the question is whether the appellant had requisite intention, or knowledge, when he has inflicted one Tangi blow on the back side of Benta Gope. In our opinion, the appellant must be imputed with the knowledge that his act was so dangerous that it would cause death of Benta Gope.

The appellant is convicted and sentenced to R.I for Seven years under section 304 Part-II I.P.C.

The judgment of conviction under section 302 IPC dated 15.09.2009 and the order of sentence of R.I for life dated 16.09.2009 passed by the learned Additional Sessions Judge, (FTC-V), West Singhbhum at Chaibasa in Sessions Trial No. 221 of 2006 against the appellant-Dabui Burh are set-aside.

Mr. Rajesh Kumar Mahtha, the learned APP states that the appellant has undergone more than Thirteen years of imprisonment.

Accordingly, the appellant, namely, Dabui Burh shall be set free forthwith, if not wanted in connection to any other criminal case.

In the result, Criminal Appeal (DB) No. 58 of 2010 is partly allowed.

The Court appreciates the efforts of Mr. Prem Pujari Roy, the learned Amicus and Mr. Rajesh Kumar Mahtha, the learned A.P.P.

The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bill(s). He shall be paid Rs.5500/- for each effective date of hearing, but subject to the cap as provided under the Notification dated 23.11.2017.

Let lower-court records be transmitted to the court concerned, forthwith.