The court modified the conviction from murder to culpable homicide not amounting to murder due to provocation, applying Exception IV to Section 300 of the IPC.

JUDGMENT :

R. Mukhopadhyay, J.

Heard Mr. B. M. Tripathy, learned senior counsel for the appellant and Mrs. Nehala Sharmin, learned Special P. P. for the State.

2. This appeal is directed against the judgment and order of conviction and sentence dated 29.06.1999 (sentence passed on 30.06.1999) passed by Shri Raj Narayan Singh, learned 1st Additional Sessions Judge, Dhanbad in S. T. No. 299 of 1991 whereby and whereunder the appellants have been convicted for the offence punishable under Section 302/34 of I.P.C. and have been sentenced to undergo imprisonment for life.

3. The prosecution case arises out of the fard beyan of Anand Mohan Gorai recorded on 17.02.1989 at 11:30 A.M. wherein it has been stated that at 9:00 A.M., he had gone to bring tomatoes when near the Shiv Mandir, he saw Satish Chandra Gorai, Nagendra Nath Gorai and Mogen Gorai getting the wall constructed by a mason touching upon the wall towards the western side of his garden. When he objected to such construction and asked them to construct the wall in a space of 6 inches from his wall, they did not listen and instead started quarrelling and Satish Chandra Gorai gave a lathi blow which was fended off with his right hand. The informant rushed back home and informed about the matter to his son Meghnath Gorai and thereafter both of them again went to his garden and they asked the accused not to construct the wall, but Satish Chandra Gorai gave a lathi blow upon Meghnath Gorai which he stopped with his hand. Seeing the aggressive behaviour of the accused, the informant and his son returned back and the informant sent his son Meghnath Gorai to Domegarh to call his another son Jitendra Nath Gorai. He has stated that once again he rushed to his garden at 10:30 A.M. accompanied by his sons Meghnath Gorai and Jitendra Nath Gorai. It has been alleged that Jitendra Nath Gorai was trying to make the accused understand at which the accused persons threatened to kill them and immediately thereafter, Satish Chandra Gorai assaulted Jitendra Nath Gorai on his head with a lathi and Jitendra Nath Gorai fell down on the earth in an injured condition. At this Mogen Gorai assaulted Jitendra Nath Gorai with a lathi while Nagendra Nath Gorai assaulted him with a Kulhari. The mother of Satish Chandra Gorai namely Chhepi Gorai has assaulted the informant with a brick. The villagers had arrived and they managed to pacify the situation. The injured Jitendra Nath Gorai was taken to FCI hospital, but on the way he died.

4. Based on the aforesaid allegations, Sindri P. S. Case No. 17 of 1989 was instituted against four accused persons under Sections 302/323/337/34 of I.P.C. On completion of investigation, charge-sheet was submitted and after cognizance was taken, the case was committed to the court of Sessions where it was registered as S. T. No. 299 of 1991. Charge was framed against the accused persons under Section 302/34 of I.P.C. which was read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried.

5. The prosecution has examined as many as 9 witnesses in support of its case.

6. P.W. 1 – Meghnath Gorai has stated that the incident is of 17.02.1989 at 10:00 A.M. when he was in his house while his father had gone outside and returned at 8:00 A.M. He thereafter left for the garden to bring tomatoes and after 5-10 minutes, he came back and disclosed that Satish Chandra Gorai, Nagendra Nath Gorai and Mogen Gorai were constructing a wall touching upon their wall. When he objected, he was assaulted with a lathi. At this he and his father went to the said place and he had told the accused persons to construct the wall at a gap of six inches from their wall. The accused persons did not listen and Satish Chandra Gorai gave a lathi blow which was defended with his hand. He and his father came back and he went to call his elder brother Jitendra Nath Gorai to Domegarh. After his elder brother came, he along with his father and elder brother went to the place of occurr