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2016 DIGILAW 203 (JHR)

Daud Toppo v. State of Jharkhand

2016-01-27

R.R.PRASAD

body2016
JUDGMENT : 1. Appellant-Daud Toppo @ Daud Daniel Topno was put on trial on the accusation of committing murder of Kristo Karmkar. The trial court having found the appellant guilty of the charge convicted him for the offence punishable under Section 302 of the Indian Penal Code vide its judgment dated 7.5.2006 passed in Sessions Trial No. 184 of 2004 and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs. 5000/- vide its order dated 7.6.2006. 2. The case of the prosecution is that while the informant-Shivani Karmkar (P.W.2), daughter-in-law of the deceased (Kristo Karmkar), was there in her house on 17.6.2003 along with her children and the deceased, the appellant came at about 10:00 am before her father-in-law (Kristo Karmkar) to whom the appellant asked to come along with him for having liquor. The appellant remained there for about 15 minutes. Thereafter both of them went towards Kachra Basti. Two unknown persons, who were outside of the house, also followed them. At about 12:30-1:00 pm, 4-5 children came to the informant and informed her that somebody has killed the deceased by inflicting knife injury. On getting said information, when the informant-Shivani Karmkar (P.W.2) came near the house of Shiv Balak Prasad Singh, she found her father-in-law dead. Meanwhile, Gouri Shankar Gupta, Officer In-charge of Olidih police station, when received information that some occurrence had taken place at Kachra Basti, he came there and found the dead-body of the deceased and recorded the fardbeyan (Ext.3) of the informant-Shivani Karmkar (P.W.2), wherein she narrated about the incident, as has been stated above. She raised suspicion against the appellant. 3. On the basis of such fardbeyan, a formal FIR was drawn and a case was registered against the appellant. P.W.11-Investigating Officer himself took up the investigation during which he inspected the place of occurrence from where he seized stone having blood on it under Seizure List (Ext.4). The Investigating Officer held the inquest on the dead-body of the deceased and prepared an inquest report. Thereupon the dead-body was sent for postmortem examination which was conducted by Dr. Niranjan Minj-P.W.10 who upon holding autopsy on the dead-body of the deceased found the following injuries:- Stab Wound: (i) 3 cm x 1½ cm x soft tissues on right thigh upper part. (ii) The weapon penetrated into the soft tissue and cut the right femural artery. Thereupon the dead-body was sent for postmortem examination which was conducted by Dr. Niranjan Minj-P.W.10 who upon holding autopsy on the dead-body of the deceased found the following injuries:- Stab Wound: (i) 3 cm x 1½ cm x soft tissues on right thigh upper part. (ii) The weapon penetrated into the soft tissue and cut the right femural artery. The stab wound was V shaped. 4. The doctor issued postmortem examination report (Ext.2) with an opinion that the death was occurred on account of shock and haemorrhage due to above injuries caused by sharp cutting-cum-pointed weapon. Meanwhile, the Investigating Officer arrested the appellant who confessed his guilt which was reduced in writing and the confession made by the appellant, led to recovery of knife which was seized under Ext.4/1. The Investigating Officer also recorded the statements of the witnesses. 5. On completion of the investigation, when the charge-sheet was submitted, cognizance of the offence was taken against the appellant and in due course, when the case was committed to the Court of Sessions, the appellant was put on trial. 6. During trial, the prosecution in order to prove its case examined as many as 12 witnesses. Of them, P.W.3-Shiv Karmkar, P.W.4-Nato Karmkar, P.W.8-Manoj Karmkar and P.W.9-Shibu Karmkar @ Baba (both sons of the deceased) are the hearsay witnesses who came to know about the occurrence from others. P.W.6-C.D. Upadhyay and P.W.7-Bir Bahadur @ Majhila have been declared hostile. P.W.1-Gyan Chandra @ Bablu and P.W.5-Satish Kumar Upadhyay though are the witnesses to the seizure of knife but they did testify that it was never seized in their presence. P.W.2-Shivani Karmkar is the informant who has testified in the same manner as she had made statement in her fardbeyan. 7. After closure of the prosecution case, when the appellant was questioned under Section 313 of Cr. P.C. over the incriminating evidence appearing against him, he simply denied. 8. Thereupon, the trial court having placed its implicit reliance on the testimony of P.W.2-informant that it was the appellant who had taken the deceased with him who was murdered within two hours from taking away, found the appellant guilty for committing murder of the deceased and accordingly recorded the judgment of conviction and order of sentence against the appellant, which is under challenge. 9. Mr. 9. Mr. A.K. Chaturvedi, learned counsel appearing for the appellant, submits that admittedly none has seen the appellant committing murder of the deceased. P.W.2-informant, as per her evidence, derived knowledge of the deceased being killed by the appellant from her husband (Santosh Karmkar) but Santosh Karmkar has never been examined by the prosecution and thereby the trial court should not have placed reliance on the testimony of P.W.2 who can be said to be an hearsay witness. Further submission, which was advanced on behalf of the defence, is that the dead-body had been recovered from near the house of Shiv Balak Prasad Singh where as per the evidence of the Investigating Officer, 3 or 4 houses of others are there, still the Investigating Officer did not interrogate them. Had the interrogation been made from them, they could have divulged the other story of the occurrence but it has not been done and, therefore, benefit of doubt be given to the appellant. Lastly, it was submitted that as per the medical evidence, the injury, which was found on the person of the deceased, was over the Thigh which can never be taken to be a vital part of the body and thereby the appellant cannot be said to have had any intention to commit murder of the deceased and under the circumstances, the trial court seems to have committed illegality in recording the judgment of conviction and order of sentence against the appellant which is fit to be set aside. 10. Heard the learned counsel for the State. 11. Having heard learned counsel 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.2-informant-Shivani Karmkar (daughter-in-law of the deceased) is that while she was there in her house along with the deceased and two children, the appellant came and took away the deceased on the pretext of having liquor. According to the evidence of P.W.2, the deceased was taken by the appellant at about 11:00 O'clock. After sometime, 4-5 children came and informed her that her father-in-law has been killed. Upon it, when she went to the place of occurrence, she found the dead-body of the deceased at about 12 O'clock. According to the evidence of P.W.2, the deceased was taken by the appellant at about 11:00 O'clock. After sometime, 4-5 children came and informed her that her father-in-law has been killed. Upon it, when she went to the place of occurrence, she found the dead-body of the deceased at about 12 O'clock. Thus, we do find that there has been close proximity in between the act of the appellant of taking the deceased along with him and the death of the deceased. In such event, it could be presumed that it was the appellant only who committed murder of the deceased. 12. It be stated that when the appellant was asked about the aforesaid incriminating evidence, he simply denied it and thereby the appellant did not give any explanation either for his innocence or that the deceased was killed in other manner than the manner which has been projected by the prosecution. 13. Coming to the other submission advanced on behalf of the defence that keeping in view the nature of injury the appellant cannot be said to have had intention to commit murder of the deceased, it be stated that it is true that the injury, which has been inflicted, was over the Thigh but that had cut the femural artery. According to the doctor, death was caused on account of shock and haemorrhage due to aforesaid injury. 14. Thus, the question crops up as to whether in the facts and circumstances noted above, the appellant can be said to have had intention to commit murder? 15. Before proceeding further in this regard, we may refer to a decision rendered in a case of Virsa Singh vs. State of Punjab, AIR 1958 SC 465 , wherein it has been observed that the prosecution must prove the following facts before it can bring a case under Section 300, thirdly. Firstly, it must establish quite objectively, that a bodily injury is present; secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the inquiry proceeds further and fourthly, it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. Their Lordships explained it further in the manner which is being given herein under: “The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness or intended serious consequences, is neither here or there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict on injury of a particular degree of seriousness but whether he intended to inflict the injury in question and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion.” (Emphasis supplied) 16. Thus, from the passage quoted above, it does appear that once it is proved that injury inflicted was sufficient to cause death, it will be presumed that the intention was there unless the evidence or the circumstances warrant an opposite conclusion. 17. Coming to the fact of the case, we may reiterate that admittedly only one injury was inflicted but we do not find any circumstances appearing in the case so as to come to the conclusion that the appellant had had no intention to commit murder of the deceased. 18. 17. Coming to the fact of the case, we may reiterate that admittedly only one injury was inflicted but we do not find any circumstances appearing in the case so as to come to the conclusion that the appellant had had no intention to commit murder of the deceased. 18. Under the circumstances, we do find that the case is based on the last seen theory whereby the prosecution has been able to establish the fact that it was the appellant who took away the deceased with him and immediately within two hours, the deceased was found murdered. 19. Thus, we do find that the trial court is absolutely justified in recording the judgment of conviction and order of sentence against the appellant. 20. Accordingly, the judgment of conviction and order of sentence passed against the appellant is hereby affirmed. 21. Consequently, this appeal stands dismissed.