- (1.) Leave granted.
(2.) Challenge in this appeal is to the judgment of a Division Bench of the Jharkhand High Court partially allowing the appeal of the appellant, while directing acquittal of co-accused persons. The appellant was convicted for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short 'IPC') by learned Vth Additional Sessions Judge, Dumka, in Sessions Case No.156 of 1980/21 of 1985. The High Court altered it to Section 304 Part I IPC, and sentence of seven years was imposed.
(3.) The prosecution version in a nutshell is as follows: Ramfali Rai (PW.1) is the son of Badri Rai (hereinafter referred to as the 'deceased'). There was a long standing dispute pending between the appellant's and the deceased's family. Proceedings were initiated under Section 145 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') and several suits were also filed. The dispute between the two families was pending from the year 1952 and according to the prosecution, it is said to be the motive for the unfortunate occurrence. On 28.6.1978, the deceased left for his field accompanied by his servant Mantu Rai. Ramfali Rai (PW.1) stayed at home and at about 9.00 a.m., he heard shouts, "Maro Maro" and came out of the house and started running towards the north from where the shouts were emanating. Reaching some distance, he found his father, Badri Rai, being chased by the accused-appellant Bihari Rai and the other two accused. Tulsi Rai and Ghutru Rai, were also found at that place. Accused Bihari Rai, inflicted three blows - two on the head and one on the hand of the deceased-Badri Rai, and the deceased fell down and the accused 2 and 3 also gave lathi blows and thereafter all the three accused left the place. The occurrence was witnessed by Ramfali Rai (PW.1), Horil Rai (PW.2), Kuwa Rai (PW.5), Gopi Rai (PW.6) and Jarman Rai (PW. 7). In the meantime, information was received at Jama Police Station by Sudhir Kumar Sinha, Sub-Inspector, that some occurrence had taken place in the village - Barudih. The said Sub- Inspector, after making an entry in the station diary, left for the scene of occurrence and reached there, where the fardbeyan, Ext. 5, given by PW.1, was recorded at 3.00 p.m. The said fardbeyan was registered as a complaint and the printed first information report of the said complaint is Ext.6. Ext.1 is the signature of Ramfali Rai (PW.1) in the said complaint, Ext.5. Investigation was taken up and the inquest was conducted, which stands marked as Ext.2/2, during which witnesses were examined. After the inquest, the body was sent to the hospital with a request to the Doctor to conduct autopsy. Dr. Upendra Prasaad Sinha (PW.9), Civil Assistant Surgeon, Sadar Hospital, Dumka, conducted post- mortem on the body of the deceased, Badri Rai, and he found the following injuries: (i) Incised wound 1" x =" x 1" on outer side of left arm; (ii) Incised wound 8" x 1" x 4" cutting the posterior left side of the scalp bone including the brain substance with a large haemorrhage (in the post mortem report the expression "haematoma" and not haemorrhage as has been deposed by the Doctor inside the brain substance; (iii) Incised wound 6" x 1" x 31/2" cutting the posterior right side of the scalp bone including the brain substance with a large haemorrhage (here also the expression in the post mortem report is haematoma) inside the brain substance; The doctor issued the post mortem certificate, Ext. 4, with his opinion that injuries (ii) and (iii) found on the body are sufficient in the ordinary course of nature to cause death and that death must have occurred within 36 hours.;