Kail Bhuiyan vs State Of Jharkhand

Heard the parties.

The appellant has preferred this appeal against the judgment of conviction and order of sentence both dated 23.07.2002 passed by the Additional Sessions Judge-I, Palamau in Sessions Trial No. 626 of 1998, whereby the appellant has been held guilty and convicted for the offence punishable under Section 302/34 of Indian Penal Code and he has been sentenced to undergo imprisonment for life.

Mr. A.K. Kashyap, learned senior counsel appearing for the appellant, submits that considering the evidence of P.Ws. 3, 4 and 7, who are the eye witnesses, and read with the evidence of the doctor, ingredients for the offence under Section 302 of IPC is not made out as it was a case of single blow given in the spur of moment. It is further submitted that though there is allegation that indiscriminate assault was made with the stick, but there is evidence of only one injury on the head of the deceased and the other injuries are superficial causing haematoma. There was land dispute between the parties and admittedly, no sharp cutting weapon or deadly weapon was used in the assault. There was no intention on the part of the appellant to commit murder of the deceased. On this ground, he prays that the conviction under Section 302 of IPC be set aside.

Ms. Nehala Sharmin, learned counsel for the State, has defended the impugned judgment of conviction and order of sentence. She submits that P.Ws. 3, 4 and 7 are the eye witnesses to the said occurrence. They had seen the appellant along with one Bhuneshwar Bhuiyan coming with sticks and assaulting the deceased indiscriminately. There is no material to disbelieve these eye witnesses. The doctor also opined that there was head injury which resulted in death. Thus, the appellant’s conviction under Section 302 of IPC was justified.

After hearing the parties, we have gone through the judgment, documents and exhibits. The First Information Report is at the instance of P.W. 7 who is the wife of the deceased. She states that when her husband (deceased) was removing the shrubs near his house, this appellant and Bhuneshwar Bhuiyan came with sticks and started assaulting the deceased as a result of which, there was fracture of his scalp. There was injury on the leg also. Her husband was taken to the hospital.

On the aforesaid fardbeyan, Chhattarpur P.S. Case No. 26 of 1998 was registered under Sections 323, 325 and 307 of IPC and later on, Section 302 of IPC was added after the death of the deceased.

To substantiate the prosecution case, the prosecution has examined eight witnesses. P.W. 8 is the doctor. He stated in his evidence that he had found two injuries; one was the stitch dressed wound on the right partial region of the scalp and another was orbital hematoma. He did not find any other injury. As per the doctor, the weapon used was hard and blunt substance. The postmortem report was marked as Ext.-1.

From the statement of the doctor and postmortem report, we find that only one blow was given on the head of the deceased. There is no other injury which was found on any part of the body of the deceased. Though the witnesses in their oral evidences have stated that there was indiscriminate assault on the deceased. Thus, the statement on the point that he was indiscriminately assaulted is not substantiated by the medical evidence.

P.Ws. 3, 4 and 7 are the eye witnesses of the occurrence. They have stated that when the deceased was cleaning the shrubs near his house, this appellant and one Bhuneshwar Bhuian came and indiscriminately assaulted the deceased with sticks. The assault was on the head, leg and other part of the body. Though there is an allegation of indiscriminate assault but the medical evidence does not support the said ocular evidence of indiscriminate assault. There is indiscriminate assault but only one blow on the head of the deceased. Admittedly, the weapon used was bamboo stick and no sharp cutting and other weapon was used. It has been held in Mahesh Balmiki v. State of M.P., (2000) 1 SCC 319

“9. Adverting to the contention of a single blow, it may be pointed out that there is no principle that in all cases of a single blow Section 302 IPC is not attracted. A single blow may, in some cases, entail conviction under Section 302 IPC, in some cases under Section 304 IPC and in some other cases under Section 326 IPC. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him”.

In the present case, from the evidence, it is manifest that the incidence took place suddenly without any premeditation, in which only one fatal blow has been found to be inflicted on the vital part of the body i.e. head, resulting in death. There was no pre-meditation and the incidence took place suddenly when the deceased was removing shrubs from near his house. The case squirely comes within Exception 4 to Section 300 of the IPC. Under the circumstance, we set aside the conviction of the appellant under Section 302 of IPC and convict him under Section 304 Part-II of IPC.

Considering the age of the appellant as on date which is nearly 67 years and, since he has already remained in custody for more than four years, the sentence is reduced to the period which he has already undergone.

This criminal appeal is dismissed with the aforesaid modification in the finding and sentence.

Pending I.A., if any, stands disposed of.

Let the Trial Court Records be sent back to the Court concerned forthwith along with a copy of this judgment.