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2019 DIGILAW 574 (JHR)

Togo Samad v. State of Jharkhand

2019-02-27

APARESH KUMAR SINGH

body2019
JUDGMENT : 1. Heard, learned Amicus Curiae and learned A.P.P. for the State 2. Sole appellant, who has been convicted under Section 302 of the Indian Penal Code by the learned District & Additional Sessions Judge, Ghatsila, in Sessions Trial Case No. 157 of 2009 by the impugned judgment of conviction and order of sentence both dated 16.01.2013, whereunder he has been sentenced to undergo Rigorous Imprisonment for life with a fine of Rs.5,000/-, in default thereof, to further undergo for one year additional rigorous imprisonment is before us in this appeal. 3. Appellant is the brother-in-law of the informant and brother of the deceased. The fardbeyan was recorded at 12 hours on 22.11.2008 at Lango Tola in the District – East Singhbhum by Sub-Inspector M. S. Kindo of Dumaria P.S. The informant, Jambi Samad (P.W.4) as per the fardbeyan inter-alia alleged that i.e. 21.11.2008 both the informant and daughter were sleeping in the west facing room of their room and her husband (deceased) Jamua Samad was sleeping in the south facing room. She heard noise of groaning and trembling between 12.00 to 1.00 in the night from the side of house where her husband was sleeping. She along with her daughter, Sini Samad (P.W.3) came out of with a lantern and called her husband. She saw that accused, Togo Samad, son of Bir Singh Samad of their village was coming out of the room of her husband and fleeing away armed with a knife and a sharp-cutting weapon like bhujali. Despite being called, he did not stop and fled away. Both the informant and the daughter went inside the room and saw her husband's dead-body drenched in blood. Then they raised brawl when people from nearby came. She has alleged as that during the rainy season of 2008, there was an altercation between deceased and the accused in relation to the release of rain water from the field of her husband to the downward field of the accused, Togo Samad. The accused had come armed with a sword and was about to assault her husband when the villager Durga Samad reached there, intervened and resolved the dispute. However, Togo Samad, the accused had threatened at that time that he will kill her husband. Since then there was tension between them and they were not in talking terms. The accused had come armed with a sword and was about to assault her husband when the villager Durga Samad reached there, intervened and resolved the dispute. However, Togo Samad, the accused had threatened at that time that he will kill her husband. Since then there was tension between them and they were not in talking terms. The informant alleged that on account of this enmity the accused, Togo Samad has entered into the house in the night and killed her husband. 4. On the basis of these allegations the formal First Information Report bearing Dumaria P.S. case No.30 of 2008 was registered on 22.11.2008 under Section 302 of the Indian Penal Code against the sole accused, Togo Samad, son of Bir Singh Samad. 5. After conclusion of the evidence and submission of charge-sheet bearing no. 02 of 2009 dated 19.02.2009 under Sections 302 and 201 of the Indian Penal Code against sole accused, Togo Samad, the cognizance of the offence has been taken vide order dated 26.02.2009 and the case has been committed to the Court of Sessions vide order dated 04.04.2009. 6. The learned Court of Sessions has framed charges under Sections 302 and 201 of the Indian Penal Code against sole accused, Togo Samad on 4th June, 2009. which were read over and explained to him in Hindi, to which he pleaded not guilty and claimed to be tried. Thus, trial commenced. During the course of trial, four prosecution witnesses were examined namely, Bir Singh Samad, son of the deceased as P.W.1, Dr. S. K. Manjhi, Medical Officer, P.W.2, who conducted the post-mortem on the dead body of the deceased Jamua Samad on 23.11.2008, P.W.3 is the daughter of the deceased and the informant namely, Sini Samad. P.W.4 is the informant, Jambi Samad. 7. The prosecution has adduced certain documentary evidence which were marked as under:- The post-mortem report was exhibited by P.W.2 and proved and marked as Exhibit-1 without objection, the fardbeyan written by Sub Inspector, M. S. Kindo has been proved and marked as exhibit-2 and registration of the fardbeyan by Sub Inspector, Manoj Kumar Thakur has been proved and marked as exhibit-2/a, as per the order dated 15.01.2013 treating it to be public document (however without objection). Upon enclosure of the evidence, the accused was examined under Section 313 of the Cr.P.C. He has denied his involvement in answer to questions no.1, 2, 3 and 4 but he has answered in affirmative to question no.5, that there was a dispute in relation to irrigation of fields between the accused (brother-in-law of the informant), and the husband of the informant and that due to enmity, he has committed murder of the husband of the informant by means of bhujali. Upon consideration of the submissions of the counsels for the parties and the materials evidence on record, the learned court has found the charges proved against sole accused/appellant herein beyond shadow of all reasonable doubt. Thus, he has been held guilty for the offence of murder. 8. Learned counsel, Mr. Jai Shankar Tripathi, Amicus Curiae submits that Investigating Officer has not been examined in this case, therefore, the place of occurrence has not been proved. There are only two material witnesses, i.e. P.W.3 and P.W.4 the daughter and the wife of the deceased, who claimed to be eye witnesses. However there is contradiction and significant embellishment in the statement of P.W.4, informant during trial as compared to her fardbeyan. P.W.1, the son of the informant and the deceased, is a hearsay witness, as he was not present on the fateful night at the place of occurrence. The incidence has not been seen by any other nighbour or villager. No other independent witness has come to support the prosecution case. The informant in her deposition, has stated that she saw the accused assaulting the deceased by a bhujali and thereafter, she raised hulla but in her fardbeyan she has categorically stated that when she came out of room along with her daughter on hearing the groans of her husband, the accused, Togo Samad was fleeing away with knife and a sharp-cutting weapon like bhujali in his hand and that her husband was found dead drenched in blood. These contradiction makes her statement untrustworthy. In these circumstances, the accused/appellant, who has been falsely implicated in this case because of some enmity deserves to be acquitted of the charge and conviction by extending him the benefit of doubt. 9. Learned Additional Public Prosecutor has supported the findings rendered by the learned Trial court in the impugned judgment. These contradiction makes her statement untrustworthy. In these circumstances, the accused/appellant, who has been falsely implicated in this case because of some enmity deserves to be acquitted of the charge and conviction by extending him the benefit of doubt. 9. Learned Additional Public Prosecutor has supported the findings rendered by the learned Trial court in the impugned judgment. He submits that the evidence of the two witnesses, P.Ws.3 and 4, both of whom were present in the house and have seen the accused fleeing away immediately after the incidence with sharp-cutting weapon like bhujali, are reliable and trustworthy to uphold the findings of conviction recorded by the learned trial court. The injuries found on the body of the deceased in the post-mortem conducted by the P.W.2 are corresponding with the nature of assault committed by the accused with a sharp-cutting weapon. There are four injuries on the body of the deceased inter-alia as follows : (i) Incised wound at the right angle of the mandibular reason 2” x ½”x ½“cutting allied tissues & muscles. (ii) Incised wound at the front of the neck 1/2” above the thyroid cartilage, Size 1 1/2” x 1” x 1” cutting to throat. (iii) Stab wound on right side of the neck at the level of thyroid cartilage size 1” x 1/2” x 1” leading to cutting of right Jugular vein, carotid vessels, sterno mastoid muscles & tissues. (iv) Stab wound on left side of the neck just below the thyroid cartilage size 1.25” x 1” x 1” leading cutting of left Jugular vein, carotid vessels & sterno mastoid muscles & tissues. Opinion-All above injuries were ante mortem in nature caused by sharp cutting weapon- Death due to shock & hemorrhage due to said injuries. Time since death elapsed 12 to 18 Hours. This P.M. report is in my pen and signature marked as exhibit-1. In the opinion of the Medical expert, death was due to all the above injuries which were ante-mortem in nature and caused by sharp-cutting weapon, which resulted in the shock and haemorrhage. The defence has not been able to discredit the testimony of these prosecution witnesses during trial. The prosecution has also been able to establish the motive for the crime through the mouth of P.Ws.3 and 4 including P.W.1, the son. The defence has not been able to discredit the testimony of these prosecution witnesses during trial. The prosecution has also been able to establish the motive for the crime through the mouth of P.Ws.3 and 4 including P.W.1, the son. There was an irrigation dispute between the deceased and the accused when the accused threatened to kill him, but was saved by the intervention of a co-villager. However, the accused bore enmity against his brother after this incidence and has in the dead of the night crept inside the house of the informant and assaulted her husband causing her death. The injuries found on the body of the deceased were sufficient in ordinary course of nature to cause death. Therefore, ingredients of offence of murder under Section 300 thirdly of the I.P.C. is established. The findings of the learned trial court are based upon the totality of the evidence on record which need not to be interfered in appeal as they do not suffer from any perversity or misappropriation of evidence. 10. We have considered submissions of the learned Amicus Curiae and the learned Additional Public Prosecutor, Mr. Abhay Kumar Tiwari, gone through the entire materials on record including the fardbeyan, the framing of charge, the statement of four prosecution witnesses, three prosecution exhibits, statement of the accused under Section 313 of the Cr.P.C. We have also gone through the impugned judgment. We have scanned the material evidence on record and considered it in entirety leaving aside minor inconsistencies in the statement of one or the other prosecution witnesses who are belonging to a Tribal community and are also not literate. As per the fardbeyan of the informant proved without objection, the informant and her daughter were sleeping in one of the rooms, facing eastern side while her deceased-husband was sleeping in south facing room. At about 12.00-1.00 a.m. in the night, she heard the groans and trembling of her husband and came out along with daughter with a lantern in their hand. She saw the accused fleeing away with a knife and a sharp-cutting weapon like bhujali in his hand and on being asked also, did not stop. Immediately after entering the room, the informant saw the dead-body of her husband drenched in blood. She saw the accused fleeing away with a knife and a sharp-cutting weapon like bhujali in his hand and on being asked also, did not stop. Immediately after entering the room, the informant saw the dead-body of her husband drenched in blood. The informant in her fardbeyan has given the background of enmity between the deceased and the accused relating to an irrigation dispute, sometime back, during the rainy season in the same year 2008. At that time the accused had almost ventured to kill the deceased, but with the intervention of a villager, Durga Samad, he could be saved. During deposition, P.W.3, daughter of informant has supported the material allegations made in the fardbeyan in the sense that she states that while she was sleeping with her mother on hearing the groans of her father, she got up and saw the accused fleeing away with a bhujali (sharp-cutting weapon) in his hand. Immediately thereafter when she saw her father, he was drenched in blood with injuries on his neck. She has also stated at Para-3 of her deposition that the accused was her uncle and about two weeks back, there was a dispute relating to some irrigation of the field with her father. This was the motive for commission of the offence by the accused. In her cross-examination, she has also stated that the door of the room in which she was sleeping with her mother was closed from inside, but the room in which her father was sleeping that was not closed from inside. She has further stated that she did not have any watch to specifically state the time when the occurrence took place or when they had gone up to sleep. P.W.4, informant, in her statement, during trial has reiterated the material part of the fardbeyan. She has stated that she was sleeping with her daughter and her husband was sleeping in another room. Upon hearing the groans of her husband, she and her daughter got up and came out and saw the accused in the light of the lantern fleeing away. She further states that her husband had died and was completely drenched in blood lying upon a cot. She further states that her statements were recorded by the Police, on which she inscribed her thumb-impression and that the dead-body of her husband was taken for post-mortem where-after it was buried. She further states that her husband had died and was completely drenched in blood lying upon a cot. She further states that her statements were recorded by the Police, on which she inscribed her thumb-impression and that the dead-body of her husband was taken for post-mortem where-after it was buried. She states at Para-3 of her deposition that the accused is her brother-in-law. She further supports the motive alleged in the fardbeyan on the part of the accused to commit the murder of her husband on account of an irrigation dispute between the deceased and the accused. We find that there are minor improvements in her statement in cross-examination, where she states that she had seen the accused assaulting the deceased with a bhujali (sharp-cutting weapon) where-after she and her daughter had raised a brawl. However she also states that nobody from nearby came at that time though they came in the morning. 11. Upon re-appreciation of the evidence of these material prosecution witnesses, who claimed to be present in the house at the time of occurrence, we do not find any major contradictions or inconsistencies in their deposition to doubt their testimony as to the time of occurrence, the place of occurrence and the manner of occurrence. Non-examination of the Investigating officer, of-course is a lapse on the part of the prosecution, but if the testimony of these two material witnesses, who were natural witnesses being the wife and daughter of the deceased living in the same house at the time of occurrence i.e. in the dead of the night at around 12.00 to 1.00 a.m. is read in its entirety, they cannot be simply thrown out for lack of corroboration by any independent witness or nearby villagers or neighbours. Since the incidence occurred at the dead of the night and these two female inmates were only in the house, and that the son of the informant and the deceased, P.W.1 was admittedly not in the house, they could not be blamed for non-presence of any other independent witness immediately after the occurrence. We find that P.W.1 at the same time, truthfully deposed and not projected himself as an eye-witness. He is a hearsay witness. He has gone to the place of his maternal uncle at Rajnagar Village on the night of the occurrence i.e. 21st November, 2008 and came to know of the occurrence from one Laxman Devgam. We find that P.W.1 at the same time, truthfully deposed and not projected himself as an eye-witness. He is a hearsay witness. He has gone to the place of his maternal uncle at Rajnagar Village on the night of the occurrence i.e. 21st November, 2008 and came to know of the occurrence from one Laxman Devgam. Thereafter he returned to his home and saw the dead-body of his father killed by causing sharp-cutting weapon on his neck. Thereafter his mother (informant) narrated incidence to him. This witness has also suggested the same reason or motive behind the occurrence i.e. the dispute relating to irrigation of the fields of the deceased and the accused when the accused had threatened to kill his father, but could be saved by the intervention of the villagers. 12. After scanning the evidence of these prosecution witnesses, we have examined the medical evidence proved through the mouth of P.W.2, the Medical Officer, Dr. S. K. Manjhi, who had conducted post-mortem on the body of the deceased on 23.11.2008 at 11.00 a.m. The injuries found on the dead-body of the deceased (Jamua Samad) show : (i) Incised wound at the right angle of the mandibular reason 2”x ½ ”x ½” cutting allied tissues & muscles.(ii) Incised wound at the front of the neck 1/2” above the thyroid cartilage, Size 1 1/2” x 1” x 1” cutting to throat.(iii) Stab wound on right side of the neck at the level of thyroid cartilage size 1” x 1/2” x 1” leading to cutting of right Jugular vein, carotid vessels, sterno mastoid muscles & tissues. (iv) Stab wound on left side of the neck just below the thyroid cartilage size 1.25” x 1” x 1” leading to cutting of left Jugular vein, carotid vessels & sterno mastoid muscles & tissues. The Medical officer (P.W.2) opined that all these injuries were caused by sharp-cutting weapon and were ante-mortem in nature. Death was caused due to shock and haemorrhage due to the said injuries and time since death about 12 to 18 hours. The nature of the injuries show both incised wound and stab wound. The prosecution witnesses, P.Ws.3 and 4 have also stated that the accused was carrying a sharp-cutting weapon like bhujali though in the fardbeyan, the informant has also stated that he was carrying a knife as well. The nature of the injuries show both incised wound and stab wound. The prosecution witnesses, P.Ws.3 and 4 have also stated that the accused was carrying a sharp-cutting weapon like bhujali though in the fardbeyan, the informant has also stated that he was carrying a knife as well. The nature of the injuries correspond to the weapon asserted by the prosecution witnesses and connect the accused with the assault. The evidence of P.Ws.3 and 4 even though not treated as eye-witness are of such nature that they establish the relevant facts in issue in terms of the principles of res gestae under the Evidence Act. The time of occurrence about 12.00 to 1.00 a.m.; the immediate preceding facts i.e. the informant and her daughter woke up on the groans of the husband of the informant, who was sleeping in a different room; their coming out of room and seeing the accused fleeing away with sharp-cutting weapon, bhujali in his hand, in the light of the lantern; the informant and her daughter, P.Ws.3 and 4 thereafter witnessing the body of the deceased drenched in blood, all have been duly proved through their mouths. The motive of the crime, being a relevant fact in issue, has also been proved by them. We, however, are constrained to say there are lapses on the part of the investigating agency and the prosecution during trial. However, the appellant cannot be allowed to take benefit of such lapses of the investigation, if the evidence of the prosecution witnesses though related are reliable and trustworthy and sufficient to prove the guilt of the accused. The defence has not been able to show any prejudice caused due to non-examination of the I.O. 13. In the above background canvass of facts and evidence, we may remind ourselves of the illuminating opinion of the Apex Court as rendered in the case of Jeewan and Others vs. State of Uttarakhand, (2012) 13 SCC 598, para-32 thereof, is quoted hereunder: “32. In Nagesh v. State of Karnataka the Court discussed various judgments of this Court and while noticing the principle that “letting the guilty escape is not doing justice according to law” held as under: (SCC pp. 485-86, paras 26-27) 26. In Nagesh v. State of Karnataka the Court discussed various judgments of this Court and while noticing the principle that “letting the guilty escape is not doing justice according to law” held as under: (SCC pp. 485-86, paras 26-27) 26. The Court has to examine the evidence in its entirety, particularly, in the case of circumstantial evidence, the Court cannot just take one aspect of the entire evidence led in the case like delay in lodging the FIR in isolation of the other evidence placed on record and give undue advantage to the theory of benefit of doubt in favour of the accused. 27. This Court in Sucha Singh v. State of Punjab has stated: (SCC pp. 653-54, para 20) ‘20. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. 25 Letting the guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh) The prosecution is not required to meet any and every hypothesis put forward by the accused. (See State of U.P. v. Ashok Kumar Srivastava.) A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some inevitable flaws because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh v. State (Delhi Admn.).] Vague hunches cannot take place of judicial evaluation. '17. … a Judge does not preside over a criminal trial, merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. ... Both are public duties....” [Per Viscount Simon in Stirland v. Director of Public Prosecutions quoted in State of U.P. v. Anil Singh (SCC p. 692, para 17).] Doubts would be called reasonable if they are free from a zest for abstract speculation. A Judge also presides to see that a guilty man does not escape. ... Both are public duties....” [Per Viscount Simon in Stirland v. Director of Public Prosecutions quoted in State of U.P. v. Anil Singh (SCC p. 692, para 17).] Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.” We have analyzed the material evidence in entirety and we have also taken into account the admission of the appellant during his examination under Section 313 of the Cr.P.C. in answer to question No.5 regarding commission of the offence by him. In the face of such materials on record, we are of the view that the appellant is not entitled to benefit of doubt. As a sequitur, the impugned judgment of conviction and order of sentence both dated 16.01.2013, passed by the learned District & Additional Sessions Judge, Ghatsila, in Sessions Trial Case No. 157 of 2009 is hereby affirmed and upheld. 14. Accordingly, the Criminal Appeal is dismissed. 15. Let the Lower Court Records be sent down to the court below forthwith along with a copy of this judgment. 16. Before parting, we appreciate the assistance rendered by learned Amicus Curiae, Mr. Jai Shankar Tripathi, during hearing of this case. His admissible legal remuneration be borne out from the funds of the High Court Legal Services Committee by the Secretary of H.C.L.S.C. within a period of four weeks from the date of receipt of a certified copy of the judgment along with an application thereof.