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2019 DIGILAW 1321 (JHR)

Pandu Topno v. State of Jharkhand

2019-07-22

RATNAKER BHENGRA, SHREE CHANDRASHEKHAR

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JUDGMENT : S. Chandrashekhar, J. 1. The sole appellant has challenged the judgment of conviction under section 302 IPC dated 11.1.2008 and the order of sentence of R.I. for life and fine of Rs. 2,000/- dated 14.1.2008 passed by the learned 1st Additional District and Sessions Judge, Gumla in Sessions Trial No. 206 of 2006. 2. On the basis of fardbeyan of Smt. Preetiwanti Topno recorded at about 17:30 hrs. on 23.5.2006, Kamdara P.S. Case No. 22 of 2006 was registered under section 302 IPC. After the investigation, the sole accused was sent up for trial. During the trial, the prosecution has examined altogether eight witnesses; the informant is P.W. 2 and her son namely, Anil Topno-P.W. 1 and daughter namely, Sunita Topno-P.W. 3 have been projected as eye-witnesses. 3. Dr. A.D.N. Prasad who has conducted post mortem examination has found the following injuries on the dead-body of Deepak Topno: 1. Sharp cut wound on left side of the postero lateral aspect of the neck 3" x 1/2" x 2" with fracture of the 6th & 7th cervical vertebra and laceration of the spinal cord. 2. Lacerated wound on the occipital tale of the skull with depressed fracture of the skull and laceration of the brain with intracranial hematoma 2" x 1/2" x 2". 4. According to the doctor, the death has occurred within 24 hrs. to 36 hrs. The doctor has opined that abovementioned injuries were caused by sharp and blunt weapon like Tangi. 5. The learned 1st Additional District and Sessions Judge, Gumla has held that the prosecution has proved the charge under section 302 IPC against the appellant and, accordingly, convicted him for the said offence. 6. Mr. Ramit Satendar, the learned Amicus submits that the narration of events as disclosed by the informant would establish that the appellant had assaulted Deepak Topno on a grave and sudden provocation due to a quarrel which took place on a trivial matter. 7. From the evidences laid by the prosecution during the trial, we find that P.W. 1, P.W. 2 and P.W. 3 have largely supported the prosecution's case. Minor inconsistencies and contradictions in their evidences would not shake foundation of the case set-up by the prosecution against the appellant. Much has been argued by Mr. 7. From the evidences laid by the prosecution during the trial, we find that P.W. 1, P.W. 2 and P.W. 3 have largely supported the prosecution's case. Minor inconsistencies and contradictions in their evidences would not shake foundation of the case set-up by the prosecution against the appellant. Much has been argued by Mr. Ramit Satendar, the learned Amicus, on the basis of an answer elicited from P.W. 2 that her husband returned home drunken from the Raikera Bazaar, however, we are not inclined to hold that Deepak Topno has died in a circumstance otherwise than what has been narrated by the informant. Presence of the appellant at the place of occurrence and assault by him on Deepak Topno have been firmly proved by the prosecution. The medical evidence led through P.W. 7 also corroborates the eye-witness account of the incident as narrated by P.W. 1, P.W. 2 and P.W. 3. 8. Now, the question is whether the appellant can be convicted under section 302 IPC. 9. In her fardbeyan, the informant has stated that in the evening at about 4:45 p.m when she was returning home along with her husband, son and daughter they met the appellant on the way. Her husband asked the appellant to part with roof-tiles which he has removed from the house of Samuel Topno, whereupon the appellant got enraged and started abusing her husband. They came back home and her husband finding the appellant in anger went behind the house of Khaira Topno. The appellant followed him and continued to abuse her husband. When her husband tried to pacify him the appellant went inside his house and brought a Tangi. The informant has asserted that the appellant assaulted her husband on his head from the back side of the Tangi and when her husband fell down he gave another blow on his neck. 10. Section 300 of the Indian Penal Code provides that culpable homicide is murder except under the circumstances which have been provided therein. One of the circumstances under which culpable homicide would not amount to murder is provided under Exception 1 to Section 300 IPC. Exception 1 provides that culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation. One of the circumstances under which culpable homicide would not amount to murder is provided under Exception 1 to Section 300 IPC. Exception 1 provides that culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation. Narration of the events as described by the informant would disclose that husband of the informant had asked for roof-tiles from the appellant which enraged the appellant. It is true that at that point in time the appellant did not assault her husband, but then, the entire episode has taken place in such quick succession that it eliminates premeditation. 11. In the above facts, we hold that the appellant is entitled for the benefit under Exception 1 to Section 300 IPC. 12. The appellant has struck two blows to Deepak Topno; as per the informant herself the first assault by him was from the back side of the Tangi, but the second assault upon the deceased was on his neck. These two injuries have been caused by the appellant on the vital part of the body and, therefore, he must be imputed with the requisite intention. 13. Accordingly, the appellant is convicted under section 304 Part-I IPC and sentenced to R.I. for Ten years. 14. The judgment of conviction under section 302 IPC dated 11.1.2008 and the order of sentence of R.I. for life and fine of Rs. 2,000/- dated 14.1.2008 passed by the 1st Additional District and Sessions Judge, Gumla in Sessions Trial No. 206 of 2006 against the appellant-Pandu Topno are set-aside. 15. Mr. Satish Kumar Keshri, the learned APP, states that the appellant has undergone more than thirteen years of imprisonment. 16. Accordingly, the appellant namely, Pandu Topno shall be set free forthwith, if not wanted in connection to any other criminal case. 17. In the result, Criminal Appeal (DB) No. 301 of 2008 is partly allowed. 18. We appreciate the efforts of Mr. Ramit Satendar, the learned Amicus and the assistance rendered by Mr. Satish Kumar Keshri, the learned APP. 19. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bills. He shall be paid Rs. 5,500/- for each effective date of hearing, but subject to the cap as provided under the Notification dated 23.11.2017. 20. Ramit Satendar, the learned Amicus and the assistance rendered by Mr. Satish Kumar Keshri, the learned APP. 19. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bills. He shall be paid Rs. 5,500/- for each effective date of hearing, but subject to the cap as provided under the Notification dated 23.11.2017. 20. Let the lower-court records be transmitted to the court concerned, forthwith.