B.B.MANGALMURTI,J. - (1.) This appeal is directed against the judgment dated 31st March, 2003 and order of sentence dated 01.04.2003 passed by Sri J.K.N. Tiwary, Additional Judicial Commissioner-XI, Ranchi in S.T. No. 82 of 1999 convicting the appellants under Section 304 Part II of the Indian Penal Code sentencing them to undergo simple imprisonment for seven years and with a further direction to set off the period already spent in custody.
(2.) The short fact of the prosecution case is that the informant being a labourer when returned to home at about 8/9 p.m. on 29.08.1988 and found his wife Sukaro Devi cooking food, his daughter Sunita Kumari aged about five years informed him that appellants had assaulted her mother with brick and rod of Eucalyptus causing injury. The wife of the informant was not mentally fit so she did not protested on being assault made to her. She was doing household work even after getting the injury. Further case is that on next day when the informant returned to his home found his wife dead lying on the ground, leading to lodgment of this case. The cause of incidence was that the younger daughter of informant has picked up a Tikuli from the house of Madhu Mahli. The wife and daughter of Madhu Mahli, Kaushalya Devi, Piyaso and Raimuniya have assaulted the wife of informant Sukaro Devi with bricks and Eucalyptus stick and due to the injuries Sukaro Devi died.
(3.) Learned counsel appearing on behalf of the appellants submitted that the appellant No. 2, Piyaso Devi died on 02.10.2006 at R.M.C.H., Ranchi and Certificate of Death vide DR. No. 8927 dated 02.10.2006 have been submitted. Officer-In-Charge, Khelgaon, Hotwar, Ranchi has also submitted his report thereon vide No. 9721/16 dated 28.08.2016. He further submitted that due to death of appellant No. 2, case of Piyaso Devi may be dropped. Now the appeal remained only against the appellant No. 1, Kaushalya Devi. The case of Raimuniya was separated and was sent to the Juvenile Justice Board. He further submitted that the prosecution has examined four witnesses, although nine witnesses were cited in the charge-sheet. The defence has also examined four witnesses on their behalf. Learned counsel for the appellants further submitted that the deceased has no complaint about the quarrel with the appellants for the assault made by them. The informant is a hearsay witness and his evidence was based on the statement of his daughter who was aged about five years at the time of occurrence and her age was assessed by the Court as eight years while she was deposing in the Court. The court below has not considered the evidences adduced on behalf of the defence where all the defence witnesses have stated that the deceased was a chronic patient of 'Epilepsy'. The fardbeyan of Pran Mahli, husband of deceased Sukaro Devi also supported the factum of insanity of Sukaro Devi as she did not complain about assault before the informant. He relied upon a decision in the case of Amrit Lakra and Ors. v. State of Bihar reported in 2002 (3) East Cr. Case 74 (Jhr) and submitted that the credibility of the prosecution case is doubtful as there is absence of motive as the deceased has not narrated the incident of assault by the appellant before the informant. He further relied on a decision reported in 2002(1) East Cr C 158 (Pat); Panchu Manjhi v. State of Bihar and submitted that the doctor has found only one external injury on the left side of forehead with diffused contusion of left frontal skull and the manner of occurrence were not sufficiently proved. The informant is also a hearsay witness as his evidence is based on the statement of minor daughter Sunita (P.W.3). Lastly, he submitted that there was no intention to commit murder and conviction has been held under Section 304 Part II, therefore, as an alternative submission basing on decision reported in 2003(1) East Cr C 250 (Jhr); Umar Ansari v. State of Bihar, the period already undergone in custody may be awarded with the modification in sentence. ;