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IN THE HIGH COURT OF JHARKHAND AT RANCHI
APARESH KUMAR SINGH, KAILASH PRASAD DEO, JJ.
Aklu Sah, son of late Doman Sah – Appellant
Versus
The State of Bihar (Now Jharkhand) – Respondent
Cr. Appeal (DB) No.281 of 1996 (P)
Decided On : 14-05-2019
Indian Penal Code,1860 - Section 302 – Criminal Procedure Code,1973 - Section 161 - Injury - FIR - Thereafter went inside his house abusing and in fit of anger came out armed with bow and arrow from his house to door of informant and again started abusing - On being stopped he threatened - Informant further alleged that in fit of anger ah shot an arrow in left side of his abdomen as result of which informant fell down and became unconscious - Thereafter he was taken by his son and villagers to Hospital for treatment - On these allegations informant asserted that of Doman has assaulted him with an arrow in his abdomen with an intention to kill him as result of which he fell down and became unconscious – Held, Exception deals with cases in which notwithstanding that blow may have been struck or some provocation given in origin dispute or in whatever way quarrel may have originated yet subsequent conduct of both parties puts them in respect of guilt upon equal footing - Sudden fight implies mutual provocation and blows on each side - Homicide committed is then clearly not traceable to unilateral provocation nor in such cases could whole blame be placed on one side - For if it were so exception more appropriately applicable would be Exception - There is no previous deliberation or determination to fight - Fight suddenly takes place for which both parties are more or less to be blamed - It may be that one of them starts it but if other had not aggravated it by his own conduct it would not have taken serious turn it did - There is then mutual provocation and aggravation and it is difficult to apportion share of blame which attaches to each fighter - Help of Exception can be invoked if death is caused without premeditation sudden fight without offender’s having taken undue advantage or acted in cruel or unusual manner fight must have been with person killed - To bring case within Exception all ingredients mentioned in it must be found - It is to be noted that fight occurring in Exception to Section is not defined in IPC - It takes two to make fight - Heat of passion requires that there must be no time for passions to cool down and in this case parties have worked themselves into fury on account of verbal altercation in beginning - Fight is combat between two and more persons whether with or without weapons - It is not possible to enunciate any general rule as to what shall be deemed to be sudden quarrel - It is question of fact and whether quarrel is sudden or not must necessarily depend proved facts of each case - For application of Exception is not sufficient to show that there was sudden quarrel and there was no premeditation - It must further be shown that offender has not taken undue advantage or acted in cruel or unusual manner - expression undue advantage as used in provision means unfair advantage – Appeal allowed
JUDGMENT :
Heard, learned counsel for the appellant, Mr. S. P. Roy and learned Additional Public Prosecutor, Mr. Manoj Kumar.
2. This appellant along with other co-accused Ram Bilash Sah, his own brother were tried for the charge of murder of their own uncle Ram Sakal Sah (the victim and informant) in furtherance of their common intention under Section 302/34 IPC in Session case No.177 of 1992 /40 of 1995 before the learned 1st Additional Sessions Judge, Godda. Accused Ram Bilash Sah was acquitted of the charge while this appellant was convicted for the charge under Section 302 of the IPC by the impugned judgment dated 14.05.1996. He was accordingly sentenced to undergo imprisonment for life vide order of sentence dated 15.05.1996 passed by the learned trial Court.
3. Victim, Ram Sakal Sah son of late Hardyal Sah village-Lohandiya P.S.-Lalmatia, District-Godda recorded his fardbeyan before A.S.I., S. N. Singh of Lalmatia P.S. on 06.06.1992 at 23.00 Hours at Government Hospital, Mahagama and later on died during treatment on 07.06.1992. As per his statement at 7.00 P.M. on that date, Aklu Sah (appellant) was quarreling with his father Doman Sah (brother of the informant) in relation to some issue about a Drumstick tree. In the meantime accused Aklu Sah started beating his father and on brawl the informant's son Suresh Sah and informant reached there and separated them. Thereafter Aklu Sah started abusing the informant and also indulged in fisticuffs in which the villagers intervened and separated them. Thereafter Aklu Sah went inside his house abusing and in a fit of anger came out armed with bow and arrow from his house to the door of the informant and again started abusing. On being stopped, he threatened. Informant further alleged that in fit of anger Aklu Sah shot an arrow in the left side of his abdomen as a result of which informant fell down and became unconscious. Thereafter he was taken by his son and villagers to Mahagama Hospital for treatment. On these allegations informant asserted that Aklu Sah, son of Doman Sah has assaulted him with an arrow in his abdomen with an intention to kill him as a result of which he fell down and became unconscious.
4. Upon institution of the Boarijore P.S. case No.87 of 1992 dated 07.06.1992 under Section 324 and 307 of the IPC to which subsequently, vide order dated 10.06.1992 section 302 of the IPC has been added, investigation commenced leading to filing of the charge-sheet bearing no.41 of 1992 dated 31.08.1992 against named accused, Aklu Sah and non-F.I.R. accused Ram Bilash Sah under Section 114, 115, 302/34 of the IPC.
5. Since the case was triable by court of Sessions, after cognizance, it was committed to the learned court of learned 1st Additional Sessions Judge, Godda, where charges were framed against both the accused persons under Section 302/34 of the IPC. On the charges being read over and explained to the accused persons in Hindi they pleaded not guilty and claimed to be tried.
6. During the course of trial prosecution examined thirteen witnesses named as under:-
Naresh Prasad Sah has been examined as P.W.1, Narayan Sah has been examined as P.W.2, Ravikant Bhagat has been examined as P.W.3, Baraku Sah has been examined as P.W.4, Jagdish Prasad Sah has been examined as P.W.5, Sheo Shankar Sah has been examined as P.W.6, Hira Lal Sah has been examined as P.W.7, Bhedan Sah has been examined as P.W.8, Sumitra Devi has been examined as P.W.9, Dr. G.P. Pandey has been examined as P.W.10, Dr. Satendra Mishra has been examined as P.W.11, Suresh Prasad Sah has been examined as P.W.12 and Suresh Nandan Singh, A.S.I. has been examined as P.W.13.
7. The prosecution has adduced a number of documentary evidence up to exhibit -6 with one material exhibit, which are as under:-
Signature of Suresh Pd. Sah on the fardbeyan has been proved and marked as exhibit-1, signature of Jagdish Pd Sah on the fardbeyan has been proved and marked as exhibit-1/1, signature of Ram Sakal Sah on the fardbeyan ha
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