The court ruled the absence of premeditated intent in the assault, leading to a modification of the conviction from murder to a lesser charge under section 304 Part-II of the IPC.

JUDGMENT :

R.Mukhopadhyay, J.

1. Heard Mr. Naveen Kumar Jaiswal, learned counsel for the appellant and Mr. Vineet Kumar Vashistha, learned Spl.P.P.

2. This appeal is directed against the judgment of conviction and the order of sentence dated 16.06.1997 and 19.06.1997 respectively passed by Sri Alok Kumar Sinha, learned VIth Additional Judicial Commissioner, Ranchi in Sessions Trial No. 301 of 1994, whereby and whereunder, the appellant has been convicted for the offence under section 302 of the Indian Penal Code and has been sentenced to undergo RI for life.

3. The prosecution case arises out of the fardbeyan of Chhotka Munda recorded on 14.01.1994 in which it has been stated that on 13.01.1994 at 5:30 p.m. he had heard a commotion outside and when he came out he saw his son Mangu Munda involved in a quarrel and abuses with Fakira Munda. The informant had rushed to the said place but before he could reach and prevent the incident the accused person had assaulted his son on his head with a Dhelforwa which resulted in the son of the informant falling down on the ground. The accused had fled away from the place of occurrence on a bicycle. When the informant raised a cry of alarm his family members and other villagers rushed to the place of occurrence. Before the son of the informant could be shifted to a hospital, he had breathed his last.

Based on the aforesaid allegation, Jagarnathpur PS Case No. 09 of 1994 was instituted under section 302 of the Indian Penal Code. 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 Sessions Trial No. 301 of 1994. Charge was framed against the accused under section 302 of the Indian Penal Code which was read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried.

4. The prosecution has examined as many as eight witnesses in support of its case.

5. PW-1 Rupan Mundain has stated that at 3:00 p.m. Fakira Munda had come to the Akhara and had threatened his brother Mangu Munda of committing his murder. Her brother went to the field and after returning he went to the Akhara. Fakira Munda had come to the Akhara with a Dhelforwa. She was at that point of time sitting in the door. When she saw Fakira Munda coming with a Dhelforwa she raised a cry of alarm at which the inmates of the house came out. She had seen Fakira Munda assaulting Mangu with a Dhelforwa on his head and he had thereafter fled away. Her brother died in the Akhara itself.

In cross-examination she has deposed that she does not know the reason for the quarrel between her brother and the accused. The quarrel had taken place at 3:00 p.m. When the quarrel had taken place her brother had already consumed liquor. At 4:00 p.m. her brother had gone to the field and she had also gone with him. Both returned together. She had not asked her brother about the quarrel which had ensued between him and Fakira Munda. She had seen Fakira coming on a bicycle. Her brother was still sleeping when Fakira had come. In the carrier of the bicycle a Dhelforwa was kept. She had not stated before the police that Fakira had come with a Dhelforwa and started abusing her brother. She has stated before the police that on hearing the call of distress her father had gone out of the house to pacify the situation. She had not seen her brother quarrel with Fakira at 5:30 p.m. She had not heard exchange of abuses between her brother and Fakira. It is true that she had not given any statement before the police relating to abuses and threats issued by Fakira Munda.

6. PW-2 Chumani Mundain has stated that at 5:30 p.m. on the date of oc