D.N.PATEL.J. - (1.) THE present appeal is arising out of Sessions Trial No. 218 of 1989 against the judgment of conviction and order of sentence dated 25.09.2001 and 26.09.2001 respectively passed by 1st Additional Sessions Judge, Gumla in S.T. No. 218 of 1989, whereby the present appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code for life imprisonment.
(2.) IT is the case of prosecution that on 15.04.1987 at about 11:30a.m. father of the informant (PW 7) who was going towards eastern side of the village along with appellant -accused after enjoying Sarhul festival in the house of Charwa Oraon. who is the village -Pahan. When they reached near to Pipal tree which is just nearer to the land of Mishraji the appellant started abusing him and on protest the appellant assaulted the father of the informant with wooden stick at the back side of the neck because of which Bandhnu Bhagat had fallen down and was raising alarm 'Bachao -Bachao' and became unconscious. On hearing the cries of the Bandhnu Bhagat (deceased), Jubi Oraon and Etwa Oraon (PWs 2 and 3) arrived at the place of scene of offence and they have seen the occurrence. As per the case of the prosecution. Bandhnu Bhagat expired, fardbeyan was given on 15th April, 1987 by PW 7. First Information Report was lodged. Case was investigated. Statements of several witnesses were recorded and case was committed to the Sessions Court and Sessions Trial No. 218 of 1989 was tried and on the basis of the evidences on record the Additional Sessions Judge, Gumla has convicted the appellant for causing murder of Bandhnu Bhagat and has punished for life imprisonment for the offence punishable under Section 302 of the IPC. Against this judgment of conviction and order of sentence, the present appeal has been preferred. We have heard counsel appearing for the appellant, who has submitted that the so -called eye -witnesses of the prosecution case are not in fact the eye -witnesses. They were not present at the scene of occurrence. Moreover, there is too much exaggerated version of the eye -witnesses. As per the eye -witnesses PW 2, PW 3 and PW 7 three blows were given by the appellant on the body of the deceased whereas there are only two injuries as per the doctor PW 9. Moreover, counsel has submitted that there is only one fatal injury. The nature of weapon is also a wooden stick used for grazing cattle. Counsel has also further submitted that in fact there was grave and strong provocation and because of exchange of abuses between appellant and deceased and there was no intention to cause the death of deceased. There is also evidence on record that both are under the influence of alcohol. The day was a festival day of Sahrul. Thus, looking to the totality of the circumstance. it is submitted by learned counsel for the appellant that this is not the case of murder but a culpable homicide not amounting to murder and therefore, instead of under Section 302, IPC the appellant at the highest can be punished under Part -II of Section 304 of the IPC and appellant is in the judicial custody since the date of judgment i.e. from 2001 onwards and therefore, if the sentence is converted up to period undergone then the purpose of criminal appeal will be served.
(3.) WE have heard counsel for the State, who has submitted that the case of prosecution is based upon eye -witnesses who are PW 2, PW 3 and PW 7. It is also submitted by A.P.P. that the appellant has caused injury at the vital part of the body and therefore, this is a case of murder and not a case of culpable homicide not amounting to murder and therefore criminal appeal may not be allowed by this Court.;