Research › Search › Judgment

Jharkhand High Court · body

2015 DIGILAW 1176 (JHR)

Tuelu Seth @ Saybu Seth v. State of Jharkhand

2015-09-23

PRAMATH PATNAIK, R.R.PRASAD

body2015
JUDGMENT : Appellant-Tuelu Seth @ Saybu Seth was put on trial on the accusation of committing murder of Deonath Seth. The court having found the appellant guilty for the charge convicted him for the offence punishable under Section 302 of Indian Penal Code vide its judgment dated 12.10.2006 passed in S.T. No. 38 of 2002 and sentenced him to undergo rigorous imprisonment for life for the said offence vide order dated 13.10.2006. 2. The case of the prosecution, as has been made out in the fardbeyan (Ext.1), is that Deonath Seth, younger brother of the informant-Radhay Shyam Seth (P.W.3), had gone to his in-laws' place. On 1.7.2001 at about 11am, Deonath Seth returned back along with his brother-in-law-Dinbandhu Seth (P.W.4), aged about 11 years. At the time when Deonath Seth came home, his wife was not there in the house and as such, Deonath Seth after washing his hands and legs slept in the room. Meanwhile, said Dinbandhu Seth started playing in front of the house of Deonath Seth along with Misrilal Seth (P.W.1), brother-in-law of Indrajit Seth-brother of deceased-Deonath Seth. At about 12 O'clock while the informant-Radhay Shyam Seth (P.W.3) was in his house, Misrilal Seth (P.W.1) came there running and informed him that the appellant after entering into the room of Deonath Seth has killed him with 'tangi'. The informant immediately rushed there and did find the appellant fleeing away with 'tangi' which was having blood mark over it. The informant chased the appellant but did not succeed in catching hold of him. When the informant came in the room of the deceased-Deonath Seth, he found him severely injured and was under the pool of blood. He was restless. Therefore, he raised alarm but in the meantime, Deonath Seth died. Thereupon, Misrilal Seth (P.W.1) disclosed to him that while he was playing, he saw the appellant entering into the room of the deceased and then cutting his neck. On getting such information, Shamim Ahmad, Officer Incharge of Tamar police station when came to the place of occurrence at about 2:30pm, recorded the fardbeyan (Ext.1) of the informant-P.W.3 who narrated about the incident, as has been stated above. He also stated about the motive of occurrence that the appellant had taken a sum of Rs. 300 from the deceased for getting his son treated. He also stated about the motive of occurrence that the appellant had taken a sum of Rs. 300 from the deceased for getting his son treated. The deceased was insisting upon him to return money but the appellant was not interested in paying back the money and on account of that, animosity was there in between the deceased and the appellant. On the basis of said fardbeyan, a formal FIR was drawn. Thereupon, the matter was taken up for investigation by the Investigating Officer, who has not been examined in this case by the prosecution. Upon taking the matter for investigation, the Investigating Officer held inquest on the dead-body of the deceased and prepared an inquest report and then sent the dead-body for postmortem examination which was conducted by Dr. Ram Sevak Ram who upon holding autopsy on the dead-body of the deceased found the following injuries :- i. Incised wound 7 cm x 2 cm x bone deep; 6cm x 1.5cm x bone deep on left cheek and adjoining left lateral neck upper part, cutting left side of mandible bone. ii. 5cm x 1.5cm x bone deep incised wound on left posterior lateral neck upper part cutting soft tissue, blood vessels and cervical vertebra partially. iii. Incised wound 4cm x 1cm x bone deep on bone/soft tissue on the back of neck. iv. Incised wound 3 cm x 1.5 cm x soft tissue, 2 cm x 1/2 cm x soft tissue, left lateral neck lower part. v. Incised wound 5 cm x 2 cm x bone deep on the upper lip, just below the nose cutting the underlying bone. vi. Incised wound 4 cm x 1 cm x soft tissue on right palm lateral side. vii. Incised wound linear 7 cm long on right chest front upper part. 3. The doctor issued postmortem examination report (Ext. 2) with an opinion that the death occurred due to shock and haemorrhage on account of aforesaid injuries caused by sharp cutting heavy weapon. Meanwhile, the Investigating Officer seized one 'tangi' without having any blood mark over it from the room of the deceased which was seized under seizure list (Ext. A). The Investigating Officer also recorded the statements of the witnesses. 4. Meanwhile, the Investigating Officer seized one 'tangi' without having any blood mark over it from the room of the deceased which was seized under seizure list (Ext. A). The Investigating Officer also recorded the statements of the witnesses. 4. On completion of the investigation, when the Investigating Officer submitted charge-sheet against the appellant, cognizance of the offence was taken and in due course when the case was committed to the Court of Sessions, the appellant was put on trial. 5. During trial, the prosecution in order to prove its case examined altogether 7 witnesses. Of them, P.W. 1-Misrilal Seth and P.W. 4-Dinbandhu Seth are the eye witnesses who did testify that while they were playing near the house of the deceased, they saw the appellant entering into the room of the deceased where he was sleeping and then killing the deceased. They informed immediately to the informant-P.W.3 who testified in the same manner as he had made statement in his fardbeyan. P.W. 2-Sambat Seth did not support the case of the prosecution and thereby he has been declared hostile. P.W. 6-Permeshwar Seth and P.W.7-Chatur Seth are the hear say witnesses and they are also the witnesses to the inquest and seizure of 'tangi'. 6. On closure of the prosecution case, when the incriminating evidence appearing against the appellant was put to him under Section 313 of Cr.P.C., he denied. 7. Thereupon the trial court having placed its implicit reliance on the testimonies of P.Ws. 1 and 4 getting corroboration from the medical evidences, did find the appellant guilty for the offence punishable under Section 302 of Indian Penal Code and accordingly, recorded the judgment of conviction and order of sentence against the appellant, which is under challenge. 8. Ms. Amrita Banerjee, learned counsel, appointed as Amicus Curiae, submits that though the informant in his fardbeyan claimed that P.W.1- Misrilal Seth and P.W.4 - Dinbandhu Seth were playing in front of the house of the deceased-Deonath Seth but in fact they, as per the evidence of P.W.1, were playing in front of the house of Indrajit Seth, which was just opposite to the house of the deceased-Deonath Seth and in that event, none of them could have any occasion to see the appellant entering into the house of the deceased-Deonath Seth and killing him. Further submission, which was made, is that as per the evidences of P.Ws. Further submission, which was made, is that as per the evidences of P.Ws. 1 and 4, they never saw the appellant entering into the house of the deceased with 'tangi' rather as per the evidence of P.W. 1, the appellant having entered into the house of the deceased committed murder with 'tangi' which had been kept in the room from before and, therefore, there was no occasion for the appellant to flee away from there with 'tangi' after committing murder of the deceased and under the circumstances, any claim made by the informant-P.W.3 of seeing the appellant fleeing away with 'tangi' appears to be false. Further, it was submitted that the claim of the informant-Radhay Shyam Seth (P.W.3) of seeing the appellant and fleeing away from the place of occurrence further gets falsified from the fact that the 'tangi' was seized from the room of the deceased itself which is evident from the seizure list (Ext. A) and the seizure list further shows that it was having no blood mark which was noticed by the Investigating Officer. In that event, the entire case of the prosecution gets falsified. Further submission is that on account of the said fact relating to seizure of 'tangi' from the room of the deceased itself and also on account of the fact that inconsistent statements are there of P.Ws. 1 and 4 over the place where they were playing either in front of the house of the deceased or at the back of the house of the deceased, non-examination of the Investigating Officer has prejudiced the case of the defence and thereby it amply gets proved that the appellant has falsely been implicated in this case but the trial court did not take into account all these aspects of the matter in right perspective and recorded the order of conviction and sentence against the appellant which is fit to be set aside. 9. As against this, Mr. 9. As against this, Mr. Amaresh Kumar, learned counsel for the State, submits that there has been no reason to discard the testimonies either of P.W. 1-Misrilal Seth or of P.W.4-Dinbandhu Seth, who at the time of occurrence were playing in front of the house of the deceased-Deonath Seth, and had occasion to see the appellant entering into the room and killing the deceased and then they immediately informed to the informant- P.W. 3 who when came rushing at the place of occurrence saw the appellant running away with 'tangi' having blood mark over it and thereby the trial court was absolutely justified in recording the judgment of conviction and order of sentence against the appellant which never warrants to be interfered with by this Court. 10. Having heard learned counsel for the parties and on perusal of the records, we do find that it were Misrilal Seth-P.W.1 and Dinbandhu Seth-P.W.4 who have claimed to have seen the appellant entering into the room of the deceased and then killing him. According to P.W. 1, all the four brothers namely, Shambhu Seth, Deonath Seth (deceased), Radhey Shyam Seth (informant) and Indrajit Seth, were living at one place but were having separate houses whose exit was on different directions. The exit of the house of Deonath Seth (deceased) was towards eastern side, whereas the exit of the house of Indrajit Seth was towards western side and that P.W.1 was playing in front of the house of Indrajit Seth towards western side which side according to the evidence of P.W.1 would not be visible from the eastern side where the exit of the house of the deceased was there. Thus, it is evident that P.Ws. 1 and 4 were playing in front of the house of Indrajit Seth exit of which is quite opposite to the exit of the house of Deonath Seth (deceased) and that from the place, where they were playing, frontage of the house of Deonath Seth would not be visible. In that event, it would not have been possible for P.Ws. 1 and 4 to see the appellant entering into the house of the deceased coming from the eastern side. However, P.W.4 has claimed to have been playing in front of the house of the deceased but his testimony in this regard is quite contrary to the evidence of P.W.1. 11. 1 and 4 to see the appellant entering into the house of the deceased coming from the eastern side. However, P.W.4 has claimed to have been playing in front of the house of the deceased but his testimony in this regard is quite contrary to the evidence of P.W.1. 11. Further, we do find that it is the case of the prosecution, as has been testified by the P.Ws. 1 and 4, that the appellant came and entered into the house and killed the deceased with 'tangi' which had been kept in the room of the deceased from before. In that event, it appears to be quite improbable that the appellant after killing the deceased would be coming out of the room with 'tangi' for giving occasion to the witnesses to see him with 'tangi' and therefore, under the circumstances, any claim made by the informant-P.W.3 of seeing the appellant fleeing away with 'tangi' appears to be unbelievable. The claim of the informant further gets falsified from the fact that 'tangi' as per the seizure list (Ext. A) has been seized from the room of the deceased and that 'tangi' was not having any blood mark over it and this fact clearly demolishes the case of the prosecution. 12. It be stated that the trial court has framed an opinion that 'tangi' seized from the room of the deceased may be another 'tangi' but this has never been the case of the prosecution. Furthermore, when it is the case of the prosecution that the appellant came and entered into the room of the deceased and killed him with 'tangi' which was there and fled with 'tangi', then the Investigating Officer should not have found any 'tangi' in the room but it is quite otherwise. 13. Going further in the matter, it be recorded that P.W.1 has testified in his cross-examination that he had met with Radhey Shyam Seth-P.W.3 after one day of the occurrence who had asked him to make statement as he had told him and as such, it creates a grave doubt over the entire matter. 13. Going further in the matter, it be recorded that P.W.1 has testified in his cross-examination that he had met with Radhey Shyam Seth-P.W.3 after one day of the occurrence who had asked him to make statement as he had told him and as such, it creates a grave doubt over the entire matter. Furthermore, on account of the fact, as has been stated above, relating to the place of occurrence from where witnesses claimed to have seen the deceased and also that 'tangi' was recovered from the room of the deceased but that was having no blood mark over it, non-examination of the Investigating Officer certainly prejudices the case of the appellant. 14. Under the circumstances, the prosecution can never be said to have proved its case beyond all reasonable doubts. However, the trial court did not take into account all these aspects of the matter in right perspective and thereby it committed illegality in recording the judgment of conviction and order of sentence against the appellant which is accordingly, set aside. 15. Thus, the appellant is acquitted of the charge and is directed to be released forthwith, if not wanted in any other case. 16. In the result, this appeal stands allowed.