Research › Search › Judgment

Jharkhand High Court · body

2015 DIGILAW 846 (JHR)

Luis Ekka v. State of Jharkhand

2015-07-23

PRAMATH PATNAIK, R.R.PRASAD

body2015
JUDGMENT : By Court : This appeal is directed against the judgment of conviction dated 3.6.2004 and order of sentence dated 4.6.2004 passed by the then Additional District & Sessions Judge, F.T.C.-I, Gumla in S.T. No. 3 of 2004 whereby and whereunder, the court having found the appellant guilty for committing murder of John Ekka, convicted him for the offence punishable under Section 302 of Indian Penal Code and sentenced him to undergo rigorous imprisonment for life. 2. The case of the prosecution, as has been projected in the First Information Report, is that there was a Karma festival on 08.10.2003 on which date every villagers enjoyed it by consuming liquor, taking food and dancing with each other. The informant also consumed liquor (rice beer). After enjoying festival, the informant-Juliyana Tirkey (P.W.5) came to the house of John Ekka-deceased (brother of the husband of the informant) along with him and Katrina Bek (wife of John Ekka) at about 10pm. They after taking meal retired to bed along with them. At about 3 am, the informant when heard shouting of John Ekka, she woke up and saw the appellant-Luis Ekka, who also happened to be the brother of her husband, assaulting John Ekka with lathi. When she tried to rescue John Ekka, the appellant also assaulted her with lathi. By that time Katrina Bek (P.W. 8) also woke up and both of them started raising alarm. Meanwhile, the appellant fled from there. They found John Ekka dead. Thereafter, Katrina Bek (P.W. 8) came out of the house and raised alarm. On hearing it, several villagers assembled over there. On the next day i.e. 9.10.2003, information was received by Bhai Bharat Kumar (P.W. 10), Officer In-charge of Basiya Police Station that somebody has been killed in the village Kara Loya Murgi Tongri. For verification of the said fact, P.W. 10 came to village where he recorded the Fardbeyan (Ext.3) of the informant-Juliyana Tirkey (P.W. 5) on the basis of which a formal FIR (Ext.6) was drawn. The I.O. undertook the investigation during which he held inquest on the dead body and prepared an inquest report (Ext.4). At the same time, the Investigating Officer at the instance of this appellant recovered an 'Axe' from behind a bush which was seized under a seizure list (Ext.5). When the appellant was arrested, he confessed his guilt which was reduced in writing as Ext. 7. 3. At the same time, the Investigating Officer at the instance of this appellant recovered an 'Axe' from behind a bush which was seized under a seizure list (Ext.5). When the appellant was arrested, he confessed his guilt which was reduced in writing as Ext. 7. 3. The Investigating Officer after holding inquest on the dead body sent the dead body for postmortem examination, which was conducted by Dr. Krishna Prasad-P.W.11. After holding autopsy on the dead body, he did find the following injuries: 1. Sharp cut injury over left perital eminance 3”x1/2”x1” scalp bone cut. 2. Sharp cut injury over occipital area 3”x1/2”x1” scalpbone cut, 3. Lacerated injury over occipital region 3”x1”, occipital bone was found fractured, 4. Abrasion over left wrist, fracture of lower 1/3rd of right hand and 5. Abrasion over left knee 1”x1”. According to the doctor, all the injuries were antemortem in nature and have been caused by sharp cutting weapon except injury nos. 3, 4 & 5 which have been caused by hard and blunt substance. Injury no. 1 was simple whereas all the injuries were grievous in nature. Accordingly, the doctor issued the postmortem examination report (Ext.8) with an opinion that the death was caused due to shock and hemorrhage on account of injury nos. 1, 2 & 3 which was sufficient to cause death in ordinary course of nature. Meanwhile, the Investigating Officer recorded the statement of the witnesses. 4. On completion of the investigation, when the Investigating Officer submitted charge-sheet against the appellant, cognizance of the offence, as aforesaid, was taken and the case was committed to the Court of Sessions where the appellant was put on trial. 5. During trial, the prosecution in order to prove its case examined altogether 11 witnesses. Of them, P.W. 1-Kerobin Ekka, P.W. 2-Andherious Ekka, P.W. 3-Prem Lakra, P.W. 4-Bertha Lakra, P.W. 6-Ajit Ekka, P.W.7-Silbestar Ekka and P.W. 9-Sunil Ekka are the hearsay witnesses who derived knowledge of deceased being killed by the appellant either from the villagers or from Kerobin Ekka-P.W.1, who himself had derived knowledge of occurrence from the villagers. Among them P.W. 2-Andherious Ekka is also the witness to seizure of Tangi, whereas P.W. 3-Prem Lakra, is the witness to the inquest. Among them P.W. 2-Andherious Ekka is also the witness to seizure of Tangi, whereas P.W. 3-Prem Lakra, is the witness to the inquest. P.W.5-Juliyana Tirkey, the informant did depose that 8.10.2003 was the day of Karma when all the villagers including she, her devar-John Ekka (deceased), Katrina Bek (wife of the deceased) enjoyed it by taking liquor and singing and dancing. After enjoying festival she came to the house of John Ekka (deceased) where she along with others retired to bed. In the night, she saw the appellant coming to the house and cutting the deceased-John Ekka. He also assaulted her causing injury to her. P.W. 8-Katrina Bek (wife of the deceased) did testify that the appellant had developed illicit relation with her forcibly and for that reason, the deceased was quite annoyed with the appellant. For that, a Panchayati had also been convened in which the appellant had been advised to live decently but the appellant committed the offence. 6. Upon closure of the prosecution case when the appellant was questioned under section 313 Cr.P.C. about the incriminating evidences appearing against him, he denied. 7. The trial court having placed implicit reliance on the testimonies of the prosecution witnesses and also the circumstances appearing against the appellant, indicating towards the culpability of the appellant, did find the appellant guilty for the offence punishable under Sections 302 of Indian Penal Code and accordingly recorded the judgment of conviction and order of sentence against the appellant, which is under challenge. 8. Md. 8. Md. Zafar Alam, learned counsel appearing for the appellant, submits that the appellant's conviction is based mainly on the evidences of P.W. 5-Juliyana Tirkey (informant) as well as Katrina Bek-P.W. 8, as they who were present at the house did testify that they saw the appellant killing the deceased but the court did not take into account the fact elicited during cross examination where both of them did admit that on the day of occurrence, it was quite dark and even no light was there in the house and that both of them were under the influence of liquor and in that event, it would not have been possible for both of them to identify the person and that was the reason that the informant in her fardbeyan made statement that the deceased was assaulted with lathi but subsequently when the doctor did find some of the injuries being caused by sharp cutting weapon, P.W. 5-Juliyana Tirkey did depose that the appellant had assaulted the deceased with Tangi and under the circumstances, neither P.W. 5-Juliyana Tirkey nor P.W. 8-Katrina Bek appear to be trustworthy and thereby their evidences were fit to be rejected but the court below instead of disbelieving their testimonies relied upon and thereby it has committed illegality in recording the order of conviction and sentence which is fit to be set aside. 9. As against this, Mr. Arun Kumar Pandey, learned counsel for the State, submits that there may be some variation in between the statement made in the fardbeyan and also the testimony but the fact is that the ocular evidence, as has been testified particularly by P.W. 5-Juliyana Tirkey, gets corroboration from the medical evidence and that the Tangi used in the commission of the offence of murder was recovered at the instance of the appellant and thereby the court below has rightly convicted the appellant and hence the order of conviction and sentence never warrants to be interfered by this Court. 10. 10. Having heard learned counsel appearing for the parties and on perusal of the records, we do find that the case of the prosecution as has been testified by the P.W. 5-Juliyana Tirkey is that on the day of Karma, the informant as well as her Devar John Ekka (her husband's brother) and also Katrina Bek-P.W. 8 (wife of the deceased) had taken food, liquor and enjoyed the festival by dancing and singing. At 10 O'clock all of them came to the house of the deceased where P.W. 5-Juliyana Tirkey also slept along with them. According to P.W. 5-Juliyana Tirkey, in the night she woke up and found that the appellant assaulted the deceased with Tangi and when she tried to rescue him, she was also assaulted as a result of which, she sustained injuries. P.W. 8-Katrina Bek though not so specific that it was the appellant who assaulted the deceased but she has deposed that as the appellant had established illicit relationship with her forcibly, the deceased was quited annoyed with the appellant and for that reason, the appellant committed offence. Thus, both of them appear to have come with the case that it was the appellant who assaulted the deceased as a result of which, the deceased died but both of them in their cross examination have categorically admitted that it was the dark night and even no light was there inside the room. This fact has also been admitted by P.W. 9-son of the deceased and that P.W. 5 has gone to say to the extent that she has not able to see in the night. In that event, it would not have been possible for them to identify the appellant and this was the reason that there was major discrepancy in between the statement made in the fardbeyan and the testimony whereby in the fardbeyan it has been stated that the deceased was assaulted by Lathi whereas in the testimony P.W. 8Katrina Bek says that the deceased was assaulted by Tangi. 11. Under the circumstances, we do find that neither P.W. 5Juliyana Tirkey nor P.W. 8-Katrina Bek appear to be trustworthy and, therefore, their testimonies are not worth reliable and instead of that, the court below has placed its reliance on the testimonies of P.Ws. 5 and 8 and thereby it committed illegality in recording the order of conviction and sentence against the appellant. 12. 5 and 8 and thereby it committed illegality in recording the order of conviction and sentence against the appellant. 12. Accordingly, the judgment of conviction and order of sentence passed against the appellant is hereby set aside. Hence, the appellant is acquitted of the charge levelled against him and is directed to be released forthwith, if not wanted in any other case. 13. In the result, this appeal stands allowed.