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CASE NO.:

Appeal (crl.) 1221 of 2007

PETITIONER:

Phulia Tudu and Anr

RESPONDENT:

The State of Bihar (now Jharkhand)

DATE OF JUDGMENT: 14/09/2007

BENCH:

Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT:

J U D G M E N T

CRIMINAL APPEAL NO. 1221 OF 2007

(Arising out of SLP (Crl.) No.5396 of 2006)

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the order passed by a

Division Bench of the Jharkhand High Court upholding

conviction of the appellants for offence punishable under

Section 302 IPC read with Section 34 of the Indian Penal Code,

1860 (in short the ’IPC’).

3. Background facts according to the prosecution in a

nutshell are as follows:

Bitia Soren (PW-8) is the sister-in-law of Biti Murmu

(hereinafter referred to as ’the deceased’). The first appellant’s

son fell ill and the appellants/accused were under the

impression that since the deceased, Biti Murmu, is a witch,

she has caused a spell on the son of the accused and,

therefore, they were nurturing a grievance against the

deceased. On the date of incident, when the villagers had gone

to the cremation ground to cremate the dead body of a villager,

Jhora Hansda, appellants Phulia Tudu and Malgo Soren,

chased the deceased, Biti Murmu, and she took asylum in the

house of Bitia Soren (PW-8). The appellants entered the house

and caught hold of the deceased, Biti Murmu. Bitia Soren

(PW-8) at that time, was engaged in dehusking paddy. The first

accused caught the hands of the deceased and pulled her out

and the deceased fell down. The first accused, Phulia Tudu,

assaulted her with lathi and when PW-8 attempted to

intervene, she was threatened with her life. The other accused

was present there at that time and after the occurrence, they

ran away from the place. After the return of the villagers

including the husband of PW-8, information was passed on to

them. Thereafter, fardbeyan, Ext.3, was given by PW-8 at

Raneshwar police station at 2.30 p.m., which was registered

as a crime and Ext.5 is the first information report and

investigation was taken up by Bijendra Narain Singh (PW-9).

PW-9, on taking up the investigation, reached the scene of

occurrence, prepared the inquest report, Ext.5, and sent the

dead body to the hospital with a requisition to the Doctor to

conduct autopsy. On completion of investigation, charge-

sheet was filed. As accused persons pleaded innocence trial

was held.

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4. The trial Court believed the evidence of PW-8 and

recorded conviction under Section 302 read with Section 34

IPC and sentenced each to undergo imprisonment for life.

However, the accused Kisto Kisku was acquitted.

5. Matter was carried in appeal before the High Court.

Before the High Court it was submitted that only accusation

was that A2 held the hands of the deceased while A1 inflicted

a lathi blow. It is submitted that lathi blow attributed to A1

could not have caused fatal injuries. In any event, only one

blow was given and, therefore, Section 302 has no application.

6. Learned counsel for the State on the other hand

supported the judgment of the High Court, which as noted

above, dismissed the appeal filed before it.

7. The crucial question is as to which was the appropriate

provision to be applied. In the scheme of the IPC culpable

homicide is genus and ’murder’ its specie. All ’murder’ is

’culpable homicide’ but not vice-versa. Speaking generally,

’culpable homicide’ sans ’special characteristics of murder is

culpable homicide not amounting to murder’. For the purpose

of fixing punishment, proportionate to the gravity of the

generic offence, the IPC practically recognizes three degrees of

culpable homicide. The first is, what may be called, ’culpable

homicide of the first degree’. This is the gravest form of

culpable homicide, which is defined in Secti