The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (D.B.) No.733 of 2014 ------- (Arising out of judgment of conviction and order of sentence dated 24.07.2014 and 28.07.2014 respectively, passed by learned Additional Judicial Commissioner-XII, Ranchi in Sessions Trial No.31 of 2012) Sanjay Toppo @ Budaru Toppo, son of Phan Toppo, resident of Village Baram Kadamtoli, P.O. Mahilong, P.S. Tatisilway, District Ranchi. The State of Jharkhand. Versus ------ … … Appellant. … … Opposite Party. CORAM : SRI ANANDA SEN, J. : SRI SUBHASH CHAND, J. ------ For the Appellant(s) : Mr. Akhouri Awinash Kumar, Advocate. Mr. Indrajit Sinha, Advocate. For the State : Ms. Priya Shrestha, A.P.P. ------ J U D G M E N T Per Ananda Sen, J.: This Criminal Appeal is directed against the judgment of conviction and order of sentence dated 24.07.2014 and 28.07.2014 respectively, passed by learned Additional Judicial Commissioner-XII, Ranchi, whereby the learned trial court held the appellant guilty for the offences committed under Section 302, sentencing him to undergo Rigorous Imprisonment for life with a fine of Rs.10,000/- (Rupees ten thousand only) and Section 201 IPC, sentencing him to undergo Rigorous Imprisonment for three years with a fine of Rs.5,000/- (Rupees five thousand only), and further ordered that in default of payment of fine, the convict shall undergo Simple Imprisonment for one year for both the alleged offences. 2. Learned counsel representing the appellant submits that there is a contradiction in the statement of the prosecution witnesses on the point of date of occurrence. He submits that as per the F.I.R., the incident occurred on 29.10.2011 but the P.W.-1 stated that the occurrence had taken place on 31.10.2011. As per the appellant, this major contradiction has been
Legal Reasoning
overlooked by the Trial Court. He stated that the P.W.-1, who happens to be the eye witness, herself admitted that she fainted and remained in such state for 20 – 25 minutes, which is a considerable period of time. If a person remains senseless for the aforesaid period of time, it is not possible for her to narrate 1 what had actually happened. Thus, it is submitted that P.W.-1 is not a reliable witness nor can be said to be an eye-witness.
Legal Reasoning
Learned counsel further submits that the P.W.-2 and P.W.-9, who also claim to be the eye-witnesses are related and their evidence cannot be relied upon. Further, it has been argued that the seizure witness did not support the prosecution case. The FSL Report of the murder weapon was also not produced before the Court. Thus, there is a genuine doubt as to which weapon was used in the alleged murder. He lastly, submits that the prosecution has failed to prove the motive behind the murder. On the aforesaid ground, it is prayed that the appellant be acquitted. 3. Learned A.P.P. submits that the P.W.-1, P.W.-2 and P.W.-9 are eye witnesses and the testimony of each of them corroborates with each other. The medical evidence also suggests that there were two blows given to the deceased by a sharp cutting weapon i.e. Farsa. The statements of these three witnesses are also in the similar line and there is no material to disbelieve the eye-witnesses. Even P.W.-9 has not been cross-examined also, thus, his testimony remains intact. The informant, though is not an eye-witness but his fardbeyan corroborates with the testimony of all the eye witnesses. On the aforesaid ground, she submits that the prosecution has proved the case beyond all reasonable doubt to convict the appellant. 4. The case of the prosecution as delineated in the F.I.R. on the basis of the ‘Fardbeyan’ of the informant is that on 29.10.2011, his relative Sunil Kispotta came to his house by motorcycle and sat on chair in front of the door whereupon Bishwasi Kachchhap went inside to bring water. Kamal Toppo was talking with Sunil Kispotta. All of a sudden, Sanjay Toppo armed with pharsa came to Sunil Kispotta and inflicted two consecutive blow in the vital part i.e. neck, as a result of which Sunil Kispotta fell down on the ground and blood oozed out. Then Sanjay Toppo dragged the dead body towards the field and concealed it. Thereafter, coated the spot with cow dung to wipe out the blood stains. The F.I.R. being Tatisilwai P.S. Case No.70/2011 has been lodged on 29.10.2011 and the charge-sheet was submitted on 02.12.2011. The cognizance against the accused-appellant was taken by the Court on 22.12.2011 under Sections 302 & 201 IPC and the case was committed to the Court of Sessions on 05.01.2012. 5. During the course of trial, altogether 10 Prosecution Witnesses have been examined by the prosecution, whose names are as here under:- i. P.W.-1 :- Bishwasi Kachchhap 2 ii. iii. iv. v. vi. vii. viii. ix. x. P.W.-2 :- Reena Toppo P.W.-3 :- Dr. Sanjay Kumar P.W.-4 :- Krishna Kachchhap (Informant) P.W.-5 :- Albert Kispotta (Father of the deceased) P.W.-6 :- Pradeep Toppo (Inquest Witness) P.W.-7 :- Sukra Gari (Seizure list witness) P.W.-8 :- Ram Das Kachchhap (Seizure list witness) P.W.-9 :- Kamal Toppo P.W.-10 :- Sri Nivash (I.O.) 6. Several documentary evidences were also exhibited which are as here under:- i. Ext.-1 :- Signature of P.W.-1 Bishwasi Kachchhap on Fardbeyan. ii. Ext.-1/A :- Signature of P.W.-2 Reena Toppo on Fardbeyan. iii. Ext.-1/B :- Fardbeyan. iv. Ext.-2 :- P.M. Report. v. Ext.-3 :- Signature of informant on seized blood list. vi. Ext.-3/1 :- Signature of Sukra Gari on seizure list. vii. Ext.-4 :- Signature of Pradeep Toppo on Inquest Report. viii. Ext.-4/1 :- Signature of Krishna Kachchhap on Inquest Report. ix. Ext.-5 :- Signature of Pradeep Toppo on Seizure List. x. Ext.-5/1 :- Signature of Ramdas Kachchhap on Seizure List. xi. Ext.-6 :- Signature of I.O. Sri Nivas on formal F.I.R. xii. Ext.-7 :- Inquest Report prepared by I.O. xiii. Ext.-8 :- Seizure List prepared and signed by I.O. xiv. Ext.-9 :- Confessional Statement of accused Sanjay Toppo. xv. Ext.-10 :- Seizure list regarding seizure of Pharsa prepared in handwriting of P.W.-10. xvi. Ext. X to X/3 :- Photographs of deceased. 7. All the aforesaid 10 cited Prosecution Witnesses in their statements, deposed as hereinbelow:- i. P.W.-1 :- Bishwasi Kachchhap, deposed that on 31.10.2011 at 12:00 noon, Sunil Kispotta came to her house as guest and he was sitting on chair outside the room. She told to Sunil Kispotta that she is going to wash the utensils and till she returns, Sunil Kispotta was talking with Kamal Toppo. When she came out from her room, suddenly Sanjay Toppo @ Budaru came with Pharsa and gave a blow on the neck of Sunil Kispotta who sustained bleeding injury and fell down on the ground. Sanjay Toppo again struck on the neck, as a result, the neck was deeply cut and only some part of neck remained attached with the body. She shouted and became unconscious. When she regained consciousness, she saw that Sanjay was dragging the dead body of Sunil and 3 taking it away towards the field. Sanjay Toppo returned at the place and he coated the place by cow dung to wipe off the blood. The witness further deposed that she tried to inform about the incident to nearby persons but none was present and all had gone to their fields. In the meanwhile, her Bhaisur (Brother in law) came there, so, she narrated the story to him. Police also came there and recorded the statement of her Bhaisur who signed on Fard Bayan. She also signed the Fard Bayan which has been marked as Exbt.1. The witness deposed that Reena Toppo and Kamal Toppo also saw the occurrence. During cross-examination, the witness deposed that the house of Reena Toppo and Kamal Toppo are in front of her house. She had not gone to police station. The witness deposed during cross-examination that seeing the occurrence, she became unconscious and when she regained consciousness after 15-20 minutes, she saw that Sanjay was dragging the dead body of Sunil Kispotta and left the same in paddy field. The witness also deposed that while Sanjay was brushing the place of incident with cow dung, Kamal and Reena escaped from there due to fear. The witness deposed that all of sudden Sanjay murdered Sunil and she could not get time to save Sunil. ii. P.W.-2 :- Reena Toppo, deposed that occurrence took place at 29.10.2011 at 12:30 noon. She was near her house. Her Bhaisur Kamal Toppo and Sunil (deceased) were talking in the courtyard. In the meanwhile, Budaru came there armed with Pharsa and gave two consecutive blows on the neck of Sunil Kispotta who sustained cut and bleeding injury and fell down on the ground. Excessive blood oozed out. Seeing the occurrence, she shouted and became nervous and also saw that Budaru (Sanjay) took away his dead body by dragging it towards the field. He then brushed the floor with cow dung and fled away. Kamal also saw the occurrence and fled away due to fear. Police arrived and took the statement of Krishna on which she signed which has been marked as Exbt.1/A. During cross-examination, the witness deposed that she put her signature after reading the Fard Bayan. She shouted after the incident but none came there. iii. P.W.-3 :- Dr. Sanjay Kumar, deposed that on 30.10.2011, he 4 was posted as a Junior Doctor in the F.M.T., RIMS, Ranchi and on that very day at 12:15 hours he conducted the postmortem examination over the dead body of Sunil Kispotta, which was brought and identified by Constable Suryabansh Pandey and found the following :- “External findings:- 1) Built average, Rigor mortis was present all over the body. Body was kept in cold storage. Abdomen is slightly distended. Dry blood stain over cloth, face and body. Left forearm is in cadaveric spasm. Injuries:- 1) 5 cm x 3 cm x bone deep oval in shape over the upper part of neck. Its 2/3 part is in left side and remaining in the right side of neck. The sharp cutting weapon cuts muscles, trachea, oesophagus, blood vessels and nerves, reaches up to cervical third vertebral body and cut it about ¼ cm depth. 2) 7 cm x 3 x ½ x bone deep oval in shape just below a skin tag measuring 6 cm x 1 cm connecting it to preceding one. 2/3 of its part is in left and remaining is in the right side of neck. The sharp cutting weapon cuts muscles, trachea, oesophagus, blood vessels and nerves, reaches up to fourth cervical vertebral body and it up to 1/4 cm depth. An another blow at the same side cutting the structure mentioned above reaches up to fifth cervical vertebral body and cut it up to 1/4 cm depth. 3) 8 cm x 1/4 cm x soft tissue over left side of neck upper part. 4) 4 cm x 1/4 cm x soft tissue right side middle part of neck. 5) 3 cm x 1/2 cm x soft tissue about 1 cm below the preceding injury. Abrasion- 1) 15 cm x 6 cm over the right side and a part of left side of forehead. 2) 3 cm x 1/2 cm left shoulder top. 3) 2 cm x 1/2 cm just above middle part of clavical right side. Internal- There is dislocation of cervical vertebra. In the opinion of P.W.-3, the above mentioned injuries are ante- mortem in nature caused by heavy sharp cutting weapon. It may be possible by Pharsa. He also identified the postmortem report which was marked as Ext.2.” iv. P.W.-4 :- Krishna Kachchhap (Informant), deposed that on 29.10.2011 she had gone to school situated at Tatisilwai Siyar Toli at 07:30 A.M. At that day, at about 01:00 P.M., he got information that Sunil Kispotta has been murdered in front of his house. He returned to his house and met Bishwasi Kachchhap and Reena Toppo who stated that Sunil Kispotta had reached 5 fifteen minutes prior to the incident and was sitting on chair in the courtyard and Bishwasi was returning after taking water from well when she saw that Sunil Kispotta was talking with Kamal Toppo. In the meanwhile, Sanjay @ Budaru came there with Pharsa and gave a blow on the neck of Sunil who fell down on the ground. Sanjay again gave another blow by Pharsa on his neck, as a result, blood started oozing out and half portion of neck was cut due to the blow of pharsa. Sanjay took away the dead body by dragging it towards the paddy field and left it there. He then brushed the place with cow dung to wipe off the blood stans. Police came there and recorded his statement on which he, Bishwasi and Reen Toppo signed which has been marked as Ext.1/B. Inquest report was prepared and dead body was sent for postmortem. The police seized and collected blood stain from the place of occurrence on which he signed which has been marked as Exbt.3. During cross-examination, the witness deposed that he did not see the occurrence but saw the dead body in field of Raju Toppo. v. P.W.-5 :- Albert Kispotta (Father of the deceased), deposed that on 29.10.2011 he got information from Krishna that Sunil has been murdered at Baram beside his house. He went there and saw the dead body of his son and became unconscious. He regained consciousness at evening on same day. Police came there, so he went with police but he is not aware as to who committed the murder. vi. P.W.-6 :- Pradeep Toppo (Inquest Witness), deposed that occurrence took place on 29.10.2011. Reena Toppo informed him at about 03:00 P.M. that Sanjay has murdered Sunil by Pharsa blow and has thrown the dead body in the field of Jahru. The witness also deposed that police came and prepared inquest report in his presence on which he signed which has been marked as Ext.4. The police seized Pharsa on information and identification of Sanjay and seizure list was prepared on which he signed which has been marked as Ext.5. vii. P.W.-7 :- Sukra Gari (Seizure list witness), deposed that he is identifying his signature on seizure list which has been marked as Exbt.3/1. But further deposed that police did not record his 6 statement. viii. P.W.-8 :- Ram Das Kachchhap (Seizure list witness), deposed that occurrence took place one year ago. He further deposed that after returning home, he heard that a person was murdered but he does not know that who was murdered. The witness identified his signature on seizure list which has been marked as Exbt.5/1. ix. P.W.-9 :- Kamal Toppo, deposed that the occurrence took place about one year ago on 29.10.2011 at about 12:00 hours. At that time, he was near his house. He saw a person coming by motorcycle and stopped near the house of Krishna Kachchhap who introduced himself with Bishwasi Kachchhap. In the meanwhile, he went there and asked the visitor about his identity, who introduced himself as Sunil. All of a sudden, Sanjay Toppo came there armed with Pharsa and gave a blow on the neck of Sunil, as a result, he fell down. Sanjay Toppo gave a second blow with pharsa on Sunil. Seeing the occurrence, he fled away being terrified. The dead body of Sunil was found on a field. The witness has identified the accused in the Court. x. P.W.-10 :- Sri Nivash (I.O.), deposed that on 29.10.2011 he received information on his mobile at 14:00 hours that Sunil Kispotta has been murdered at village-Baram, so, he proceeded towards the said village along with armed force and recorded statement of Krishna Kachchhap at 14:45 hours. The witness deposed that Krishna Kachchhap, Bishwasi Kachchhap and Reena Kachchhap signed the Fard Bayan which has been marked as Ext.1/b.The witness identified his signature on formal F.I.R. filled by A.S.I. which has been marked as Ext.6. The witness identified his signature on inquest report which has been marked as Ext.7. The dead body was sent to RIMS with police No.110, namely Suryabansh Pandey. The blood fallen at place of occurrence were picked up with the help of cotton and was sealed in an envelope on which Krishna Kachchhap and Sukra Gari signed and accordingly seizure list was prepared and marked as Ext.8. 8. After recording the statements of the accused under Section 313 Cr.P.C., the defence has also examined three defence witnesses, statements 7 of whom are here under:- i. D.W.-1 Magho Toppo, deposed that on 30.10.2011 he had gone to the house of his sister along with Sanjay Toppo where it came to his knowledge that the police was searching for Sanjay Toppo, so he went to Police Station with Sanjay Toppo where he was arrested by the police. ii. D.W.-2 Budhani Kachchhap, deposed on 18.02.2014 that she was at her village-Lal Khatanga on 30.10.2011 and his brother Sanjay Toppo was also with her. In the evening his brother Magho Toppo called her that the Police is in search of Sanjay Toppo and he has been arrested by the police. iii. D.W.-3, Sunita Toppo, deposed that Sanjay Toppo and Magho Toppo had gone to the house of their sister on 30.10.2011 for constructing the wall and stayed at night. Police came in search of Sanjay Toppo and when he went to police station, he was arrested by the police. All these witnesses tried to establish that the appellant was not at the place of occurrence on the date and time of murder. 9. After hearing the parties, we have gone through the deposition of all the witnesses and the exhibits. 10. From the evidence laid by the parties, we find that P.W.-1, P.W.-2 and P.W.-9 are the eye witnesses. P.W.-1 stated that she saw this appellant came with a farsa and gave a blow on the neck of Sunil Kispotta, who sustained bleeding injury and fell down on the ground. Second blow was also given by him. As a result of both the blows, major part of the neck got severed. She stated that Reena Toppo and Kamal Toppo also saw the occurrence. Reena Toppo is P.W.-2, also stated that Kamal Toppo and Sunil Kispotta were talking in the courtyard. In the meanwhile this appellant came armed with a farsa and struck the deceased. She also stated that two consecutive blows were given on the neck of the deceased. As there was a hue and cry, the appellant fled away. P.W.9 - Kamal Toppo, also stated that he was present at the place of occurrence when Sanjay Toppo armed with farsa came and gave blow on the neck of Sunil. He also stated that two blows were given on the neck of Sunil. The inquest witnesses also deposed that they put their signature on the inquest report and the body was recovered in their presence. 11. From the evidence of these three witnesses, it is clear that they are eye witnesses and there is nothing in their evidence to disbelieve them. Though, P.W.1 stated that she became unconscious but the fact is that she became 8 unconscious after she had seen the assault. Thus, it cannot be said that she had not seen the occurrence and remained in the state of unconsciousness when the assault was made. 12. Admittedly, the informant is not the eye witness and he had stated that he was informed about the said occurrence. The information which has been narrated by him when he deposed as P.W.-4 is the information which he had gathered from the eye witness. There is no discrepancy in their statements. 13. The medical evidence also suggests that two major blow on the neck was given and there was dislocation of cervical vertebrae. The weapon was also suggested to be a heavy, sharp cutting weapon may be farsa. Thus, the ocular evidence matches with the medical evidence. The witnesses also stated about the occurrence to the Investigating Officer when he was investigating the case. 14. Further the eye witnesses stated that the appellant dragged the body to the field. This statement is established from the fact that the body was recovered from the field. 15. The defence has also examined three witnesses. These witnesses tried to make up a case that on the date of occurrence, the appellant had gone to the house of his sister. Save and except this oral evidence, there is no other element to inspire confidence on their statement. Thus, we find no material to doubt the testimony of the eye witnesses and the evidence laid by the prosecution.
Decision
16. From the evidence, we hold that the prosecution has able to prove the guilt of this appellant beyond all reasonable doubt. Thus, the judgment of conviction and order of sentence against the appellant passed by the trial court does not warrant any interference. We find no infirmity in the said judgment. 17. Accordingly, the present Criminal Appeal is dismissed. 18. The Trial Court Record be sent back to the Court concerned. (ANANDA SEN, J.) (SUBHASH CHAND, J.) High Court of Jharkhand, Ranchi Dated 8th April, 2024 Prashant. 9