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2019 DIGILAW 746 (JHR)

Kamal Toppo v. State Of Jharkhand

2019-03-26

H.C.MISHRA, SANJAY KUMAR DWIVEDI

body2019
JUDGMENT 1. Heard learned counsel for the appellant and learned counsel for the State. 2. The sole appellant is aggrieved by the impugned Judgment of conviction dated 13 th of December, 2007 and Order of sentence dated 18.12.2007, passed by the learned Additional Sessions Judge, F.T.C. No.-1, Gumla, in Sessions Trial No. 260 of 2006, whereby, the appellant Kamal Toppo, has been found guilty, and convicted for the offences under Sections 302 and 201 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo R.I. for life for the offence under Section 302 of the Indian Penal Code. No sentence however, was passed for the offence under Section 201 of the Indian Penal Code. 3. The prosecution case was instituted on the basis of the written report, submitted by the informant Milkius Beck, the husband of the deceased Filomina Beck, before the Officer-Incharge of the Chainpur Police Station, in the District of Gumla, on 28.7.2006, wherein he has stated that on 27.7.2006, when he returned from Chainpur Market at about 7.30 P.M., he did not find his wife in the house. He asked his daughter Ankita Beck, aged about 14 years, about the whereabouts of her mother, whereupon, she informed him that at about 7.00 P.M., her maternal uncles Anil Tigga, Jinius Minz, Philip Ekka and Lilin Ekka had come to their house, and informed that they had some quarrel with the boys of the village, whereupon, her mother had gone to see them off out of the village. When the wife of the informant did not return back till night, the informant thought that she might have gone to her parents place. On the next day, while he was plaughing his field, he was informed by his elder brother that the dead body of his wife was lying in the agricultural field of Benzamin Minz, whereupon, he went there and found the dead body with her saree tied in her neck, her face was crushed, which was defaced, and there were other injuries on the other parts of the body, by which, it appeared that she had been murdered by crushing her face by stone. The informant did not make any suspicion against anyone, stating that he had no enmity with anyone in the village. The informant did not make any suspicion against anyone, stating that he had no enmity with anyone in the village. On the basis of the written report submitted by the informant, Chainpur P.S. Case No. 45 of 2006 corresponding to G.R. No. 661 of 2006, was instituted for the offences under Sections 302, 201/34 of the Indian Penal Code , against unknown, and investigation was taken up. After investigation, the police submitted the charge-sheet in the case. 4. After commitment of the case to the Court of Session, charge was framed against the accused for the offences under Sections 302 and 201 of the Indian Penal Code, and upon the accuseds pleading not guilty and claiming to be tried, he was put to trial. 5. In course of trial, 13 witnesses were examined by the prosecution, including the I.O., and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. 6. P.W.-1 Milkius Beck is the informant and husband of the deceased, and P.W.-2 Ankita Beck is daughter of the deceased, and both these witnesses have supported the prosecution case, as stated in the written report. In the Court also they have stated about the finding of the dead body of the deceased with injuries, in the agricultural field, but they have not stated anything against the accused. Signatures of these witnesses on the written report were marked as Exhibits-1 and 1/2 respectively, on their identification. P.W.-2 Ankita Beck has also stated that near the dead body of her mother, one ear-ring of her mother was also found. P.W.-1 Milkius Beck has stated in his cross-examination that the accused is his co-villager. 7. P.W.-3 Thomas Toppo and P.W.-4 Subodh Toppo have stated that they had seen the dead body with the injuries. They are also the witnesses to the seizure list of the ear-ring, which was recovered near the place of occurrence, and their signatures were marked Exhibits-2 and 2/1 respectively on their identification. Both these witnesses have stated that on the next date, the accused Kamal Toppo, made an extra-judicial confession before them, stating that the ear-ring recovered near the dead body was his own, and he had committed the murder of the deceased. Both these witnesses have stated that on the next date, the accused Kamal Toppo, made an extra-judicial confession before them, stating that the ear-ring recovered near the dead body was his own, and he had committed the murder of the deceased. They have stated that their statements were also recorded under Section 164 of the Cr.P.C., before the Magistrate, on which also, they have proved their signatures, and the same were marked Exhibits-3 and 4 respectively. In his cross-examination P.W.-3 Thomas Toppo has stated that he had never given the statement before the police. P.W.-4 Subodh Toppo has stated in his cross-examination that the ear-ring, which was recovered was of white colour. This witness has stated that he had put his signature on the seizure list at the police station after 2-3 days of the occurrence. Both of them have also admitted that normally such ear-rings are worn by females. 8. P.W.-5 Ramis Beck and P.W.-6 Adward Khalkho are the witnesses to the inquest report, on which, they have identified their signatures, which were marked Exhibits-5 and 5/1 respectively. They are not the witness to the occurrence. P.W.-6 Adward Khalkho has also stated that the police had seized an ear-ring from the place of occurrence, and he had seen the accused wearing such ear-ring earlier, though, such ear-rings were worn by ladies. In his cross-examination, he has admitted that he did not remember as to in which ear, the accused was wearing the ear-ring. 9. P.W.-7 Silwanuis Beck and P.W.-8 Admond Lakra are the witnesses to the seizure of one stone from the bush, on the pointing out of the accused, and P.W.-9 Jairam Oraon and P.W.-10 Chetan Rautia are the witnesses to the seizure of some clothes of the accused in a plastic bag, from the bushes, on the pointing out of the accused, and they have proved their signatures on both the seizure lists, which were marked Exhibits-6 and 6/1, and 7 and 7/1 respectively. These witnesses have stated nothing about the occurrence, except that the recoveries were made in presence of the accused, and on his pointing out. 10. P.W.-13 Md. Istiyak Ahmad had produced the seized materials in the Court. The ear-ring was marked material Exhibit-I, the stone was marked material Exhibit-II and the cloths were marked material Exhibits-III and IV. 11. P.W.-11 is Dr. 10. P.W.-13 Md. Istiyak Ahmad had produced the seized materials in the Court. The ear-ring was marked material Exhibit-I, the stone was marked material Exhibit-II and the cloths were marked material Exhibits-III and IV. 11. P.W.-11 is Dr. Sanjay Kumar, who had conducted the post-mortem examination on the dead body of the deceased on 29.7.2006, and had found lacerated and crushed injuries on the head and face of the deceased, which had broken the frontal and nasal bones in multiple small pieces. Left maxilla and left lower mandible were also found fractured. He has stated that all the injuries were ante-mortem in nature, caused by hard and blunt substance, and the cause of death was due to shock and haemorrhage due to the injuries found on the dead body. He has proved the post-mortem report to be in his pen and signature, which was marked Exhibit-8. 12. P.W.-12 is Vinay Kumar, who is I.O. of the case. This witness has stated that on 28.7.2006, he was posted as Officer-Incharge of Chainpur Police Station and he had received the written report from the informant Milkius Beck and his daughter Ankita Beck. He has proved the written report and the formal F.I.R., which were marked Exhibits-9 and 10 respectively. He recorded the statements of the informant and his daughter and proceeded for the place of occurrence for its inspection. He has stated that the place of occurrence is an uncultivated agricultural field, where he found the dead body of the deceased with her saree tied in her neck. It also appeared that the murder was committed after crushing the face with stone, and near the dead body he also recovered an ear-ring, which is normally worn by boys. He has stated that there was no blood stain at the place of occurrence. He had prepared the inquest report of the dead body of the deceased, which he has proved, and the same was marked Exhibit-11. He prepared the seizure list relating to the seizure of the ear-ring, which he has proved, and was marked Exhibit-12. He recorded the statements of the witnesses and sent the dead body for post-mortem examination. On the next day he was informed about the extra-judicial confession made by the accused and he recorded the statements of the other witnesses also. He prepared the seizure list relating to the seizure of the ear-ring, which he has proved, and was marked Exhibit-12. He recorded the statements of the witnesses and sent the dead body for post-mortem examination. On the next day he was informed about the extra-judicial confession made by the accused and he recorded the statements of the other witnesses also. He arrested the accused from the village and recorded the confessional statement and on the basis of said confessional statement, he seized a stone and prepared the seizure list, which he has proved, and the same was marked Exhibit-13. On the basis of the confessional statement, he also seized the cloths of the accused in a plastic bag and had prepared the seizure list, which has proved and the same was marked Exhibit-14. He got the statements of the witnesses Thomas Toppo and Subodh Toppo, recorded under Section 164 of the Cr.P.C., before the Magistrate, and after completing the investigation, he submitted the charge-sheet in this case. In his cross-examination, this witness has admitted that there was no blood stain on any of the seized articles. He has denied the suggestion of making faulty investigation. 13. The statement of the accused was recorded under Section 313 of the Cr.P.C., wherein he has denied the evidence against him. No evidence was adduced by the defence. On the basis of the materials on record, the accused has been found guilty and convicted by the Trial Court below for the offences as aforesaid. 14. Learned counsel for the appellant has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law, as there is no eyewitness to the occurrence, and though, P.W.-3 Thomas Toppo and P.W.-4 Subodh Toppo have stated that the accused himself had made the extra-judicial confession before them and had stated that the ear-ring, which was recovered near the dead body, belonged to him, but the evidence of P.W.-2 Ankita Beck, the daughter of the deceased, clearly shows that the ear-ring belonged to her deceased mother. Learned counsel has, accordingly, submitted that extra-judicial confession allegedly made before these witnesses is not at all reliable. Learned counsel has, accordingly, submitted that extra-judicial confession allegedly made before these witnesses is not at all reliable. Learned counsel further submitted that though, one stone and clothes of the accused were shown to be recovered on the basis of the confessional statement of the accused, but the fact remains that the I.O. has admitted that there was no blood stain on any of the recovered articles. Learned counsel accordingly, submitted that the prosecution has failed to bring home the charges against the accused beyond all reasonable doubts and in the facts of the case, the appellant ought to have been given the benefits of doubt. 15. Learned counsel for the State, on the other hand, has opposed the prayer, submitting that though, there is no eyewitness to the occurrence, but the prosecution case is fully supported and proved from the extra-judicial confession made by the accused before P.W.-3 Thomas Toppo and P.W.-4 Subodh Toppo, and both these witnesses have stated that the accused had admitted his guilt before them. It is further submitted that on the basis of the confessional statement of the accused, the stone, by which, the offence had been committed, and the clothes of the accused were recovered by the police and this also is a strong circumstance against the accused. Learned counsel, accordingly, submitted that the circumstances proved in this case by the prosecution point out only towards the guilt of the accused, and as such, there is no illegality in the impugned Judgment of conviction and Order of sentence, passed by the Trial Court below, worth any interference by this Court. 16. Having heard learned counsels for both the sides and upon going through the record, we find that admittedly, there is no eyewitness to the occurrence, and P.W.-1 Milkius Beck and P.W.-2 Ankita Beck have made no allegation against the accused. P.W.-1 Milkius Beck has stated that the accused is his co-villager, and the fact remains that they had no clue about the involvement of the accused till the time of lodging the F.I.R. P.W.-2 Ankita Beck has clearly stated that the ear-ring, which was recovered near the dead body of the deceased, belonged to her mother. P.W.-1 Milkius Beck has stated that the accused is his co-villager, and the fact remains that they had no clue about the involvement of the accused till the time of lodging the F.I.R. P.W.-2 Ankita Beck has clearly stated that the ear-ring, which was recovered near the dead body of the deceased, belonged to her mother. In that view of the matter, the extra-judicial confession, allegedly made by the accused before P.W.-3 Thomas Toppo and P.W.-4 Subodh Toppo cannot be relied upon, in as much as, both these witnesses have stated that the accused had also stated before them that the ear-ring belong to him. Since the fact that the ear-ring belonged to the accused is absolutely doubtful in the present case, the extra-judicial confession cannot be relied upon. The other circumstance against the accused, i.e., recovery of the stone and his clothes from the bushes, on the basis of his confessional statement, also is very doubtful, in view of the admission by the I.O., P.W.-12 Vinay Kumar, that no blood stain was found on any of the recovered materials. The circumstances proved by the prosecution, in our considered view, are not at all convincing, and cannot be relied upon. No motive has either been alleged, or proved by the prosecution, for committing the offence by the accused facing the trial. 17. In the facts of the case, we find that the prosecution has not been able to bring home the charges against the accused beyond all reasonable doubts, and several strings of circumstances have remained unexplained in the case. We are of the considered view that in the facts of this case, the accused appellant could not have been convicted and sentenced for the offences charged, and he was entitled at least to the benefits of doubt. As such, the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law. 18. For the forgoing reasons, the impugned Judgment of conviction dated 13 th of December, 2007 and Order of sentence dated 18.12.2007, passed by the learned Additional Sessions Judge, F.T.C. No.-1, Gumla, in Sessions Trial No. 260 of 2006, convicting and sentencing the appellant Kamal Toppo, for the offences under Sections 302 and 201 of the Indian Penal Code, are hereby, set aside. Consequently, the appellant Kamal Toppo is given the benefits of doubt, and he is acquitted of the charges. The appellant Kamal Toppo is in custody undergoing the sentence. He is directed to be released and set as liberty forthwith, if his detention is not required in any other case. 19. In the facts of the case, we find that P.W.-1 Milkius Beck and P.W.-2 Ankita Beck, the husband and the daughter of the deceased, are the victims of crime, and they should be duly compensated under the Victim Compensation Scheme, under Section 357-A of the Cr.P.C. We, accordingly, direct the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, to take appropriate steps in this regard, in consultation with the concerned District Legal Services Authority, so that these victims of crime may be adequately compensated at the earliest. Let a copy of this Judgment be sent to the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, for the needful. 20. This appeal is accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.