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2015 DIGILAW 839 (JHR)

Imil Topno v. State of Jharkhand

2015-07-23

PRAMATH PATNAIK, R.R.PRASAD

body2015
JUDGMENT 1. This appeal is directed against the judgment of conviction date 19th December 2003 and order of sentence dated 23rd December 2003, passed by the then Additional Judicial Commissioner II, Khunti in Sessions Trial No. 393 of 2002, whereby and whereunder the Court having found the appellant Imil Topno guilty for committing murder of Khirodhar Sahu, convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life. 2. The case of the prosecution, as has been projected in the fardbeyan (Ext.1/1), is that on 28/04/2002, Khirodhar Sahu, the husband of the informant Phulmani Devi (PW1), had gone to the village Degree to attend a marriage ceremony. While he was there in that village, the appellant Imil Topno, at about 12 O' Clock, came to the house of the informant armed with 'Tangi' and started banging the door with 'Tangi'. He even climbed on the roof and started breaking the tiles. Seeing all this, the informant Phulmani Devi came out of the home and rushed to the village Degree. But, by that time, her husband Khirodhar Sahu had left the village Degree. At about 6' Clock in the evening, her son Garib Das (PW2) came to the village Degree and informed her that the appellant Imil Topno by entering into the house, has committed murder of his father. On hearing this, she immediately came home and found her husband dead. By that time also the appellant was wondering here and there by holding 'Tangi' in his hand and, therefore, he did not come out of the house for informing about the occurrence at the police station. On the next day, i.e. 29/04/2002, when Suresh Prasad Yadav, the Officer-in-Charge of Torpa Police Station came to the house of the informant at about 06:30 A.M., he recorded the fardbeyan of the informant wherein she narrated the same story as has been stated above. She also stated about the motive wherein she stated that his son Basudeo Sahu and one Bindri Topno, daughter of the appellant Imil Topno, were working at Punjab, where Basudeo Sahu the son of the deceased got married to her and on account of that the appellant used to held out threats to the deceased of dire consequences. On the basis of the said fardbeyan, a formal FIR (Ext.4) was drawn. 3. On the basis of the said fardbeyan, a formal FIR (Ext.4) was drawn. 3. The matter was taken up for investigation, during which the Investigating Officer (PW8) held inquest on the dead body of the deceased and prepared an inquest report. Thereupon, he sent the dead body for postmortem examination, which was conducted by Dr. P.M. Topno (PW7), who, on holding autopsy, did find the following injuries on the person of the deceased: “(i) Both eyes half opened, mouth opened and teeth were visible. Bleeding through nose and both ears. (ii) Lacerated wound over right side of parietal region size 2” x 2” x 1.” On exploration bone was found fractured full of blood clots, laceration of meninges and brain matters.” According to the Doctor, the aforesaid injuries were sufficient to cause death, which have been caused by hard and blunt substance such as back portion of 'Tangi' and the death occurred due to shock and hemorrhage on account of the injuries to vital organ brain. He proved the injury report as Ext.3. Meanwhile, the I.O. (PW8) seized the 'Tangi' which was lying beside the dead body of the deceased under seizure list (Ext.2) in presence of witness PW3. The I.O also recorded the statements of the witnesses. 4. On completion of the investigation, when charge sheet was submitted, cognizance of the offence was taken against the appellant. 5. Upon the case being committed to the Court of Sessions, the appellant was put on trial, during which the prosecution, in order to bring the charge home, examined as many as 8 witnesses. Of them PW1 the informant Phulmani Devi has testified in the same manner as she had made statements in her fardbeyan. PW2 Garib Das Sahu the son of the informant did testify that while he was playing near his house, he saw the appellant Imil Topno coming to his house having 'Tangi' in his hand and started banging the door with 'Tangi' as a result of which her mother became scared and, therefore, she came out of the house and went to village Degree where his father had gone from before to attend a marriage ceremony. Further, he has testified that at about 2 O' Clock his father returned back home and slept at Verandah where he also slept beside his father. Further, he has testified that at about 2 O' Clock his father returned back home and slept at Verandah where he also slept beside his father. At 4 O' Clock, the appellant again came with 'Tangi' and entered into the house and gave 'Tangi' blow over the back portion of the head of his father and then left the house leaving 'Tangi' near the dead body. Thereupon, he also came to village Degree to inform about the occurrence to his mother. PW3 Krishna Kumar Sahu has testified that when he heard PW2 raising alarm that his father is being killed by the appellant, he came to the house of the informant and saw the appellant coming out of the room of the deceased and then fled away. When he came inside the room, he found Khirodhar dead. PW4 Balkishun Sahu, PW5 Sonto Manjhi and PW6 Tetaru Sahu are the hearsay witnesses, but they have also stated about the motive in the same manner as the informant (PW1) did disclose. 6. The trial court, having placed its implicit reliance on the testimonies of the witnesses, particularly PW2 the eyewitness and also the other witness PW3, who saw the appellant fleeing away from the house of the deceased, did find the appellant guilty for committing the murder of Khirodhar Sahu and accordingly, recorded the order of conviction and sentence as aforesaid. 7. Being aggrieved with the judgment of conviction and order of sentence, this appeal has been preferred. 8. Mr. Lakhan Sharma, learned counsel appointed as Amicus Curiae, submits that as per the case of the prosecution, this appellant assaulted the deceased with 'Tangi' but the injury has been found by the Doctor to have been caused by hard and blunt substance and, thereby, the ocular evidence of the sole eyewitness PW2 never gets corroboration from the medical evidence and, thereby, the Court should have acquitted the appellant but instead of acquitting the appellant recorded the order of conviction and sentence and, thereby, it committed illegality. 9. As against this, Mr. 9. As against this, Mr. Awnish Shankar, learned counsel appearing for the State submits that it is true that such discrepancy, as has been pointed out on behalf of the appellant, is there, but in the facts and circumstances, that never appears to be fatal for the prosecution case as the Doctor in his evidence has categorically stated that the injuries can be caused by back portion of the 'Tangi' and that the injuries had been caused by the 'Tangi' which fact itself gets proved as the 'Tangi' which the appellant had left by the side of the dead body, had been recovered by the police and that there appears to be nothing to discard the testimony of the eyewitness PW2 and also the testimony of the other witnesses such as PW3, who had seen the appellant coming out of the house and running away and under the circumstances the trial court has rightly convicted and sentenced the appellant and, hence, the order of conviction and sentence never warrants to be interfered with. 10. Having heard learned counsel appearing for the parties and on perusal of the records, we do find that it is the case of the prosecution as has been testified by PW1 the informant Phulmani Devi that on 28/04/2002, while her husband Khirodhar Sahu (the deceased), had gone to village Degree to attend a marriage ceremony in the house of his relative, she was in the house. At about 12 O' Clock the appellant Imil Topno having armed with 'Tangi' came and started dashing the door with Tangi. Being scared of, she left home and came rushing to the village Degree, but by that time her husband had already left the village Degree. Further, it appears from the evidence of PW2 Garib Das Sahu, the son of the deceased that his father Khirodhar Sahu had returned back home at about 2 O' Clock. After returning from there he slept at Verandah. At 4 O' Clock, the appellant came with Tangi, opened the door and entered into the room and assaulted the deceased with Tangi over back portion of his head as a result of which, he died. Further, it appears that when the appellant assaulted the deceased, PW2 raised alarm that his father is being killed by the appellant. On hearing this, PW3 Krishna Kr. Further, it appears that when the appellant assaulted the deceased, PW2 raised alarm that his father is being killed by the appellant. On hearing this, PW3 Krishna Kr. Sahu came and found the appellant coming out of the room of the deceased barehanded and then fleeing away. We do not find anything to disbelieve the testimony of PWS2, which find corroboration from the evidence of PW3, whose evidence can be taken to be admissible in view of Section 6 of the Evidence Act, which speaks about the principle of Res Gestae. The provision as contained in Section 6 of the Evidence Act, is an exception to the general rule whereunder hearsay evidence becomes admissible and for bringing such hearsay evidence within the ambit of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there could not be an interval, which would allow fabrication. In other words, the statements said to be admitted as forming part of Res Gestae must have been made contemporaneously with the act or immediately thereafter. 11. In the instant case, PW2 raised alarm while the appellant was assaulting the deceased that his father is being killed by the appellant, which was heard by PW3 and, thereby, the evidence of PW3 becomes admissible. Further, we do find that the testimony of eyewitness and also the other witness gets corroboration from the medical evidence whereby the Doctor did depose that the injury which was there on the person of the deceased, can be caused by back portion of the 'Tangi'. It would be fair on our part to record that as per the evidence of the Doctor (PW7), the Doctor did find the injury in the nature of laceration. In that event, the submission has been advanced on behalf of the appellant that the injury, which has been caused to the deceased, has not been caused by 'Tangi' rather it has been caused by hard and blunt substance and, as such, ocular evidence is belied by the medical evidence. 12. In that event, the submission has been advanced on behalf of the appellant that the injury, which has been caused to the deceased, has not been caused by 'Tangi' rather it has been caused by hard and blunt substance and, as such, ocular evidence is belied by the medical evidence. 12. We are not in agreement with the submission advanced on behalf of the appellant in view of the facts and circumstances that the Doctor has clearly opined that the injury can be caused by the back portion of 'Tangi' and further that the 'Tangi' which was used in commission of the offence, was seized as the appellant, after assaulting the deceased, had left it by the side of the dead body. 13. Under the circumstances, we do find that the testimonies of the eyewitness PW2 and also the other witnesses are quite reliable and hence, we do find that the trial court was absolutely justified in recording the order of conviction and sentence, which is hereby affirmed. 14. In the result, this appeal, being devoid of any merit, is hereby dismissed.