Against The Judgment And Order Of ... vs The State Of Jharkhand
2022 Latest Caselaw 3026 Jhar

                  Criminal Appeal (D.B.) No. 91 of 2014
    [Against the judgment and order of conviction and sentence dated
    05.12.2013 (sentence passed on 09.12.2013) passed by Sri Vidhan
    Chandra Choudhary, learned Judicial Commissioner-II, Khunti in
    Sessions Trial No. 203/2010]
                                   ...........

Mangal Topno, S/o Late Bandhu Topno, R/o Village Gupila, Thepa Toli, P.O. & P.S. Rania, District Khunti (Jharkhand) ... ... Appellant Versus The State of Jharkhand ... ... Respondent ...........

For the Appellant : Mrs. Bakshi Vibha, Advocate For the State : Mr. Bhola Nath Ojha, Advocate PRESENT HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE AMBUJ NATH ...........

C.A.V. on 19/07/2022 Pronounced on 04/08/2022

Heard Mrs. Bakshi Vibha, learned counsel for the appellant and Mr. Bhola Nath Ojha, learned A.P.P. for the State.

2. This appeal is directed against the judgment and order of conviction and sentence dated 05.12.2013 (sentence passed on 09.12.2013) passed by Sri Vidhan Chandra Choudhary, learned Judicial Commissioner-II, Khunti in Sessions Trial No. 203/2010, whereby and whereunder the appellant has been convicted for the offence u/s 302 of the IPC and has been sentenced to undergo imprisonment for life along with a fine of Rs. 10,000/-.

3. The fardbeyan of Nimunti Topno was recorded on 10.02.2010 at 12:15 P.M., in which, it has been stated that on 09.02.2010 her husband had brought pork and had distributed it amongst his friends. He had given a small quantity of pork to his brother Mangal Topno (appellant), at which Mangal Topno became furious and started assaulting her husband for giving him little quantity of pork. When the husband of the informant protested Mangal Topno with an axe had all of a sudden committed assault upon him on his head as a result of which her husband fell down on the earth. In the meantime, Sanjay Topno of the same village instigated Mangal Topno to commit the murder of her husband and Sanjay Topno had also rained some Lathi blows upon him. It has also been alleged that Mangal

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Topno assaulted the husband of the informant a few more times and when she intervened she was pushed by him.

Based on the aforesaid allegations Rania P.S. Case No. 3/2010 was instituted for the offence punishable u/s 302/34 of the IPC against Mangal Topno and Sanjay Topno. On conclusion of investigation charge-sheet was submitted u/s 302/34 of the IPC against both the accused persons and after cognizance was taken the case was committed to the Court of Sessions where it was registered as S.T. No. 203/2010. Charge was framed against the accused persons u/s 302/34 of the IPC which was read over and explained to the accused in Hindi to which he pleaded not guilty and claimed to be tried.

4. The prosecution has examined as many as seven witnesses in support of its case.

5. P.W.1 (Sumanti Kandulna) is a witness to the inquest report who had put her thumb impression on the inquest report.

6. P.W.2 (Junas Kandulna) has not supported the case of the prosecution and has accordingly been declared hostile by the prosecution.

7. P.W.3 (Bahamani Kandir) has deposed that the incident is of January, 2010 and at 8:00 P.M. her daughter had told her that Mangal Topno had assaulted Benjamin on his back and head with an axe as a result of which Benjamin had died. She has stated that she was not present at the place of occurrence.

In cross-examination, she has deposed that on coming to know about the murder she had informed the Police.

8. P.W.4 (Masidas Kandir) has stated that the incident is of February, 2010. He was in his village and his daughter Nimunti had called him over phone and informed him that his son- in-law has been murdered by Mangal Topno and Sanjay Topno. He has deposed that Sanjay had initially assaulted with a spade on the waist of Benjamin Topno and when he fell down Mangal Topno

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had assaulted him on the head with an axe.

In cross-examination, he has deposed that the distance between his house and the matrimonial house of his daughter is about 60-70 Km. He had not disclosed to the Police about how the incident had unfolded.

9. P.W.5 (Dr. M.K. Singh) was posted as a Medical Officer at Sadar Hospital, Khunti and on 10.02.2010, he had conducted autopsy on the dead body of Benjamin Topno and had found the following injuries:

(i) One incised wound on mid perito occipital area of scalp, size 6" x 1½" into bone deep. Both parietal and occipital bones cut completely.

(ii) One incised wound on right side of occipital area of scalp, size 3½" x ½" into bone deep.

(iii) One incised wound on left temporal area size 5" x ½" into bone deep.

All injuries are antemortem in nature and caused by sharp cutting object. Cause of death hemorrhage and shock.

He has proved the postmortem report which is in his handwriting and bears his signature and which has been marked as Exhibit-1. He has opined that the injuries may be caused by Tangi blow.

10. P.W.6 (Nimunti Topno) is the informant who has stated that the incident is of the year 2010 at 8:00 P.M. while she was at her house. Her husband had slaughtered a pig and was having meal with all other family members. Mangal Topno had expressed his annoyance that he has been given a small quantity of pork and saying this he had assaulted Benjamin Topno with an axe on his shoulder and head. She has deposed that her husband fell down and after some time died. On the next day, she had informed the Police. Her statement was recorded by the Police in which she had put her signature. She has identified her signature and the same has been marked as Exhibit-2. She has also proved her signature in the inquest report which has been marked as Exhibit-3.

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In cross-examination, she has deposed that her husband are three brothers; Benjamin, Mangal and Birsa. All the three brothers are involved in farming. Mangal has a separate bed room but they have a common kitchen. She has stated that there was no dispute or difference between the brothers. The brothers had quarreled due to shortage of meat. The incident happened suddenly after the quarrel. She has further stated that the occurrence took place in her presence and when she intervened she also suffered injuries on being assaulted with an axe on her right leg. Her husband did not have liquor though her brother-in- law did. At the time of the incident eight persons were having meals. She had reached the Police Station at 7:30 A.M. and her fardbeyan was recorded at the Police Station itself. At the time of the occurrence, her parents were at Jurdag which is at a distance of 60-70 Km. from her matrimonial house. This witness has further stated that Mangal Topno had picked up the axe kept at her house and gave her husband axe blows. Birsa was not present in the house when the incident had occurred. She had disclosed about the incident to Bhomus Topno, Kuldeep Topno and village pradhan Jyotish Topno.

11. P.W.7 (Chandra Bhan Rai) was posted as an officer- in-Charge of Rania P.S. on 10.02.2010. He had recorded the fardbeyan of Nimunti Topno and after registering the case he took over investigation and visited the place of occurrence. The fardbeyan as well as the endorsement are in his handwriting and he had also signed on the same and both have been marked as Exhibit-2 and 2/1 respectively. He has also proved the formal First Information Report which has been marked as Exhibit-4. He has proved his writing and signature on the inquest report which has been marked as Exhibit-5. In course of investigation, he had recorded the restatement of the informant and had also inspected the place of occurrence which is at village Gopila, Dhepatoli in the earthen tiled house of the informant. The dead body was found at

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the place of occurrence and blood stains were also detected. He had recorded the statements of Sumanti Kandulna, Junas Kandulna, Masidas Kandir and Bahamani Kandir. Both Mangal Topno and Sanjay Topno were arrested. He had obtained the postmortem report and as per the supervision of the superior authority he had submitted charge-sheet against Mangal Topno and Sanjay Topno. He has further stated that Junas Topno had told him that the informant had disclosed that on account of a dispute relating to distribution of pork Mangal Topno had assaulted Benjamin Topno with an axe resulting in his death.

In cross-examination, he has deposed that he had not seized blood stained earth. In course of investigation, he could not detect any specific motive and the incident had occurred suddenly due to a fight with respect to share of pork. The murder weapon also could not be recovered by him.

12. The statement of the accused was recorded u/s 313 Cr.P.C. which reveals mere denial of his involvement.

13. Mrs. Bakshi Vibha, learned counsel for the appellant has submitted that the evidence of the witnesses do not point towards any premeditated act by the appellant. The incident had occurred due to a dispute regarding share of pork which infuriated the appellant causing axe blows upon his brother Benjamin Topno. Mrs. Vibha, further submits that the entire facets of the case would attract Section 304 of the IPC and not Section 302 of the IPC.

14. Mr. Bhola Nath Ojha, learned A.P.P. has referred to the evidence of P.W.6 while submitting that several blows were given with the axe by the appellant and which has been corroborated by the postmortem report and therefore the appellant has rightly been convicted for the offence u/s 302 of the IPC.

15. We have heard the learned counsels for the respective sides and have also perused the Lower Court Records.

16. The case relates to the murder of Benjamin Topno

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the husband of the informant. The appellant as well as Sanjay Topno were alleged to be the assailants though Sanjay Topno has been acquitted by the learned trial court. The incident of assault unraveled on account of a dispute between Benjamin Topno and the appellant with respect to distribution of pork. The occurrence is said to have taken place when they were having meal. Incidentally the deceased was the own brother of the appellant. The only eye-witness to the occurrence is P.W.6 who has stated that at the time of assault, she was serving meal. As per P.W.6, the brothers shared a cordial relationship and stayed at the same house and were having a common kitchen. All the brothers were engaged in farming. Her evidence dispels any theory regarding existence of any enmity between the appellant and the deceased. The act of the appellant, therefore, is not a premeditated or a preconceived act and happened at the heat of the moment. A trivial dispute regarding distribution of pork flared up resulting in assault committed by the appellant with an axe upon Benjamin Topno and his life was snuffed out. As per P.W.6 the axe was in the house itself which was picked up by the appellant when the dispute arose and with which the assault was committed. P.W.7 who is the Investigating Officer in his cross-examination has deposed that there was an absence of motive and the incident had occurred due to a sudden fight with respect to share of pork.

17. Since it has been submitted by the learned counsel for the appellant that at best it can be a case u/s 304 of the IPC, we venture to examine Section 300 of the IPC and exception 4 to Section 300 reads as follows:

"Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation.--It is immaterial in such cases which

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party offers the provocation or commits the first assault."

18. In the case of "Atul Thakur versus State of Himachal Pradesh and Others", reported in (2018) 2 SCC 496, consideration was being made to the conviction of the accused as though the learned trial court had convicted the said appellant for the offence u/s 304 Part II of the IPC but the same was overturned by the High Court and the appellant was convicted for the offence u/s 302 of the IPC. The incident which had unfolded in the said case was a brawl which happened in a drinks party and the appellant Atul Thakur had repeatedly stabbed Hitesh Thakur with a knife resulting in his death. While considering Exception 4 to Section 300 of the IPC in the facts and circumstances of the said case it was held as follows:

"12. Taking overall view of the matter, the facts of the present case warrant invocation of Exception 4 to Section 300 IPC. For, it is a case of culpable homicide not amounting to murder inasmuch as the incident happened on account of sudden fight between the friends who had gathered for a drink party arranged at the behest of Hitesh Thakur. There was no premeditation and the act done by the appellant was in the heat of passion without the appellant taking any undue advantage or acted in a cruel manner. The number of wounds caused by the appellant, it is a well-established position, by itself cannot be a decisive factor. The High Court committed manifest error in being influenced by the said fact. What is relevant is that the occurrence was sudden and not premeditated and the offender acted in the heat of passion. The evidence supports the case of the appellant in this behalf. The fact that the appellant used weapon such as knife, is also not a decisive factor to attract Section 302 IPC. Neither the use of a knife in the commission of offence nor the factum of multiple injuries given by the appellant would deny the appellant of the benefit of Exception 4.

13. Dealing with a somewhat similar situation, in Surain Singh v. State of Punjab [Surain Singh v. State of Punjab, (2017) 5 SCC 796 : (2017) 3 SCC (Cri) 461] , this Court has restated the settled legal

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position about the purport of Exception 4 to Section 300 IPC. Even in that case, the accused had repeatedly assaulted the deceased with a kirpan and caused injuries resulting into death. After restating the legal position, the Court converted the offence to one under Section 304 Part II instead of Section 302 IPC. Following the same legal principle and keeping in mind the factual position as unfolded, the view taken by the trial court of convicting the appellant for the offence punishable under Section 304 Part II, is unexceptionable.

15. As aforesaid, the High Court overturned this finding of the trial court on the question of nature of offence, by mainly observing that the appellant had caused repeated blows with a weapon like knife, causing six serious injuries to Hitesh Thakur to which he succumbed. We are of the opinion that neither the factum of use of knife by the appellant during the assault nor the multiple blows (six) given by the appellant can be the sole basis to deny the appellant of the benefit available under Exception 4 to Section 300 IPC. The Court is obliged to take an overall view of the matter on the basis of the established facts. This principle is restated in Surain Singh case [Surain Singh v. State of Punjab, (2017) 5 SCC 796 : (2017) 3 SCC (Cri) 461]."

19. Similar is the case at hand and the evidence of the witnesses points to a scenario in which Section 304 Part II is attracted.

20. Though it was argued before the learned trial court on behalf of the defence that there was no specific motive and on account of a petty matter due to a sudden provocation the incident had occurred but the learned trial court had not at all considered such aspects and have primarily based its conclusion on the fact that the appellant had given axe blows thrice upon the deceased Benjamin Topno while convicting him for the offence u/s 302 of the IPC.

21. However, as has been noted above, there was no motive in existence, the relationship between the brothers was cordial, they stayed together in the same house having a common kitchen and only on account of distribution of pork which

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infuriated the appellant, he had assaulted his brother with an axe. In such circumstances, therefore, no case u/s 302 of the IPC is made out and only Section 304 Part II of the IPC is attracted in the facts and circumstances of this case.

22. Accordingly, the judgment and order of conviction and sentence dated 05.12.2013 (sentence passed on 09.12.2013) passed by Sri Vidhan Chandra Choudhary, learned Judicial Commissioner-II, Khunti in Sessions Trial No. 203/2010 is modified and the appellant is held guilty for the offence punishable u/s 304 Part II of the IPC and is sentenced to undergo R.I. for 10 years.

23. Since it has been submitted at the Bar by the learned A.P.P. that the appellant has remained in custody for about 14 years, the appellant shall be released forthwith, if not, wanted in any other case.

24. This appeal is allowed in part.

(Rongon Mukhopadhyay, J.)

(Ambuj Nath, J.)

High Court of Jharkhand at Ranchi Dated, the 4th day of August, 2022.

Alok/NAFR