Suresh Singh And Ors vs State Of Jharkhand

Shree Chandrashekhar, JÂ

Seven persons have been named as accused by Netai Singh in his fardbeyan which was recorded on 26.03.2000 at about 11:15 hours at Khargora

Jungle, Mouza-Khokra. On the basis of his fardbeyan, Patamda P.S. Case No. 23 of 2000 has been registered against the above-named accused

persons on 26.03.2000 under section 302/34 of the Indian Penal Code.

In Sessions Trial No. 255 of 2000/16 of 2000, the appellants have suffered the judgment of conviction and the order of sentence of R.I for life under

section 302/34 of the Indian Penal Code.

During pendency of this criminal appeal, the appellants namely, Deven Singh, Nakul Singh and Photu Singh have died and, accordingly, this appeal

qua the appellants namely, Deven Singh, Nakul Singh and Photu Singh has abated vide order dated 23.10.2019.

During the trial the prosecution has examined eight witnesses; the informant, namely, Netai Singh is P.W.1.

The case of the prosecution is narrated by the informant in his fardbeyan which was recorded next day of the occurrence. The informant is son of

Rup Singh, the deceased. In his fardbeyan, the informant has stated that on 25.03.2000, at about 10:00 a.m, he along with his father and younger sister

were picking Mahua from the government land. At that time, wife of Suresh Singh, Nemai Singh and Balai Singh also came there but his father

stopped them from picking Mahua. On getting this information, the accused persons came there and started quarrel with his father. According to the

informant the quarrel escalated and the accused persons picked up stones lying there and started assaulting his father. After they assaulted his father

they took him near the house of Durlabh Singh, however, when Durlabh Singh refused they took his father near a Mahua tree and fled away leaving

him there. The informant has claimed that his younger sister, namely, Manjura has also seen the accused persons assaulting their father. He has seen

injuries on head, chest, arm, knee and near eye of his father. He has sent information to his sister-in-law whereupon others came to the place of

occurrence.

The prosecution has projected Netai Singh-P.W.1 and Manjura Singh-P.W.2 as eye-witnesses.

Mr. Arun Kumar Pandey, the learned APP submits that the eye-witness account to the occurrence by P.W.1 and P.W.2 is sufficiently

corroborated by the evidence of Dr. A. K. Choudhary-P.W.3 who has conducted the postmortem examination. Submission of the learned APP is that

the appellants with an intention to kill have assaulted Rup Singh and, therefore, the judgment of their conviction under section 302/34 of the Indian

Penal Code is well-founded.

The informant has deposed in the court that on 25.03.2000 he was present with his sister and father at the place of occurrence. They had gone

there for picking Mahua. He has stated about the appellants coming there, starting quarrel with his father and assault by them to his father. In his

cross-examination, he has stated about injuries to his father on his eye, hand, chest and other parts of his body. His sister has also narrated a similar

story of the occurrence which has taken place in the forenoon of 25.03.2000. During their cross-examination both these witnesses have stood to their

grounds and nothing significant could be elicited by the defence from them during their cross-examination. Their evidence is sufficiently corroborated

by medical evidence.

Dr. A. K. Choudhary-P.W.3 who has conducted the postmortem examination on 27.03.2000 at about 11:00 a.m has found abrasion, contusion and

lacerated injuries on Rup Singh. According to the doctor, injuries to Rup Singh were caused by hard and blunt substance, possibly by stone and the

time elapsed since death was within 36 to 48 hours from the postmortem examination.

P.W.4 has put his signature on the fardbeyan and P.W.6 is the inquest witness. P.W.7 is other son of the deceased and though he is not an eye-

witness, he has deposed in the court that his father along with his brother and sister had gone for picking Mahua. In paragraph no. 3 of his cross-

examination, he admits that by the time he had gone to the field his father had died and in paragraph no. 6 of his cross-examination, he has admitted

that about one hour after the occurrence he had gone to the place of occurrence. The investigating officer has found the dead body of Rup Singh lying

near a Mahua tree. He has seized blood-stained earth, stone chips, utensils and two shirts from the place of occurrence. He has prepared the inquest

report and affirmed that he has recorded fardbeyan of Netai Singh at about 11:15 a.m on 26.03.2000.

From the aforesaid evidence of the prosecution witnesses, we find that the prosecution has established presence of the appellants at the place of

occurrence and at the time of occurrence. We further find that the prosecution has established participation of the appellants in the occurrence.

Now the question is whether on such evidence the appellants, particularly the surviving appellants, can be convicted under section 302/34 of the

Indian Penal Code.

Section 300 of the Indian Penal Code provides that culpable homicide is murder if the offending act falls under any one of the four clauses under

section 300 of the Indian Penal Code, but at the same time it also provides that if the offending act falls under any one of the five Exceptions under

section 300 of the Indian Penal Code, the accused shall be liable to be convicted for culpable homicide not amounting to murder.

The learned counsel for the appellants has contended that the appellants deserve benefits under Exception-4 to section 300 of the Indian Penal

Code.

In “Surinder Kumar Vs. Union Territory, Chandigarh†reported in (1989) 2 SCC 217, the Supreme Court has indicated the essential

ingredients for bringing a case under Exception-4 to section 300 of the Indian Penal Code, as follows:

“To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was

done in a heat of passion; and (iv) the assailant has not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant

nor is it revelant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but

what is important is that the occurrence must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted

in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of

which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.......â€​

From the prosecution’s evidence it is evident that it was a trivial issue â€" for picking Mahua from a government land â€" that led to a quarrel

between the appellants and Rup Singh. The appellants were not present at the place of occurrence in the beginning and they came there unarmed.

The informant himself has stated in his fardbeyan that the matter had escalated during the quarrel (ckr cup stones lying there and assaulted his father. The investigating officer has deposed in the court that he has seized stone chips; a stone chip is

distinctly different from the heavy stone. The injuries found on Rup Singh which of course are many in number but would indicate that the weapon of

assault was not heavy. This also needs to be recorded that injuries on Rup Singh are found on non-vital parts of the body, such as; two small abrasions

on left arm, tiny abrasions on his upper face; contusions on his left arm and front of chest, neck, right arm and back of trunk; lacerated wound on the

front side of his leg area. The doctor has found certain internal injuries, such as, contusion of soft tissue on back of left forearm, right arm, right elbow,

back of right forearm and left leg.

From the aforesaid facts, it can be gathered that the appellants did not intend to cause death of Rup Singh, rather in a sudden fight in the heat of

passion and upon a sudden quarrel the appellants have caused injuries to Rup Singh. Presence of mild abrasions and contusions on Rup Singh would

reflect that the appellants have not taken undue advantage and not acted in a cruel and unusual manner; they could have assaulted Rup Singh mainly

around his scapular region but that is not so. This is also unchallenged that the prosecution has not identified which injury has caused death. According

to the doctor, cause of death was shock and hemorrhage and it is not opinion of the doctor that any particular injury was sufficient to cause death of

Rup Singh.

In the aforesaid state of evidence, we hold that conviction of the surviving appellants, namely, Suresh Singh, Nimai Singh, Haripado Singh and

Balai Singh under section 302/34 of the Indian Penal Code is not sustainable and, accordingly, it is set-aside.

The appellants, namely, Suresh Singh, Nimai Singh, Haripado Singh and Balai Singh are convicted and sentenced to R.I of five years under section

304 Part-II of the Indian Penal Code, as their case is squarely covered under Exception-4 to section 300 of the Indian Penal Code.

The appellants namely, Suresh Singh, Nimai Singh, Haripado Singh and Balai Singh are on bail and, therefore, bail bonds furnished by them are

cancelled.

They shall surrender before the court below to serve the remaining sentence.

The court concerned shall issue a modified conviction warrant in terms of this judgment.

In the result, Criminal Appeal (DB) No. 510 of 2001 is partly allowed.

Let a copy of the judgment be transmitted to the Court concerned through ‘FAX’.

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