Jharkhand High Court
Jospat Jojo vs The State Of Jharkhand on 20 July, 2022
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (D.B.) No.904 of 2015
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[Against the judgment of conviction and order of sentence dated 30.07.2015,
(sentence passed on 06.08.2015) passed by Sri Ram Babu Gupta, learned
Additional Sessions Judge, Simdega, in connection with S.T. No. 30/2010.]
Jospat Jojo ..... Appellant
Versus
The State of Jharkhand ..... Respondent
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CORAM: HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE AMBUJ NATH
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For the Appellant : M/s. Nalini Jha, Advocate
For the State : M/s. Saket Kumar, A.P.P
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09/20.07.2022
1. Heard Ms. Nalini Jha, learned counsel appearing on behalf of the
appellant and Mr. Saket Kumar learned A.P.P. appearing on behalf of the State.
2. This appeal is directed against the judgment of conviction and
order of sentence dated 30.07.2015, (sentence passed on 06.08.2015), passed
by Sri Ram Babu Gupta, learned Additional Sessions Judge, Simdega, in
connection with S.T. No. 30/2010 arising out of Jaldega (Orga) P.S. Case No.
35 of 2009, Corresponding to G.R. No. 305 of 2009, holding the appellant
Jospat Jojo guilty of offences under sections 302, 324 and 307 of the Indian
Penal Code and thereby sentencing him to undergo imprisonment for life along
with fine of Rs.5,000/- for the offence under Section 302 of the Indian Penal
Code, in default of payment of fine, he was further directed to undergo simple
imprisonment for four months. The appellant was further sentenced to undergo
rigorous imprisonment for ten years along with fine of Rs.5,000/- for the
offence under Section 307 of the Indian Penal Code, in default of payment of
fine, he was further directed to undergo simple imprisonment for four months.
The learned Additional Sessions Judge, Simdega, also sentenced the appellant
to undergo R.I. for a period of three years along with fine of Rs.2,000/- for the
offence under Section 324 of the Indian Penal Code and in default of payment
of fine he was further directed to undergo simple imprisonment for one month.
60 % of the total fine amount was ordered to be paid to the wife of the
deceased, whereas 20 % each of the fine amount was ordered to be handed over
to injured Pratima Surin and Chiristina Surin. All the sentences were ordered to
run concurrently.
3. The prosecution case, in brief is that on 20.10.2009 at about 12:00
noon, the informant, namely, Jusphina Samad had gone to the house of her
cousin, Augustus Surin at village Tati Bera Toli. While there, on 21.10.2009 at
about 06:00 A.M., the appellant, namely, Jospat Jojo came there and assualted
Pratima Surin and Chiristina Surin by an axe causing injuries on their person.
When Gabrial Samad tried to intervene, the appellant inflicted axe blows on his
head due to which he succumbed to his injuries and died at the spot.
4. After investigation police found the occurrence to be true and
submitted charge-sheet under Sections 324, 307 and 302 of the Indian Penal
Code. Cognizance of this case was taken by Sri Vijay Kumar No.1, learned
C.J.M., Simdega. This case was committed to the court of Sessions on
26.04.2010 as it was exclusively triable by a court of Sessions.
5. Charge was framed against the appellant on 01.12.2010 under
Sections 302, 324 and 307 of the Indian Penal Code. The same was read over
and explained to the appellant in Hindi to which he pleaded not guilty and
claimed to be tried.
6. In order to prove its case the prosecution has adduced both oral
and documentary evidence.
Saswati Kumar Lugun, P.W.-1 is witness of inquest. He has
proved the inquest report which has been marked as Ext.-1. He is not an eye
witness to the occurrence.
James Surin P.W.-2, is also not an eye witness to the occurrence.
Gregori Surin P.W.-3, and Binod Surin P.W.-4 have been declared
hostile.
Jusphina Samad P.W.-5 is the informant of this case, she has
supported the case as stated in her fardbeyan. She is an eye witness to the
occurrence.
Chiristina Surin P.W.-6 is one of the injured witness. She has
supported the prosecution case.
Pratima Surin P.W.-7 is another injured witness. She has also
supported the prosecution case.
Ram Sarovar Singh P.W.-8 is the Investigating Officer of this
case. He has proved the fardbeyan which has been marked as Ext.-2 and he has
proved the formal F.I.R., which has been marked as Ext.-3.
Alfred Surin P.W.-9 is another eye witness to the occurrence. He
has supported the prosecution case.
Dr. Surjit Lakra P.W.-10 had examined both the injured witnesses,
namely, Chiristina Surin and Pratima Surin. He has proved the injury reports,
which are Ext-4 series.
Thomas Justin Minj P.W.-11 is another Doctor who had examined
Pratima Surin at RIMS, Ranchi. He has proved the report of C.T. Scan of her
brain, which has been marked as Ext.-5. According to him, Pratima Surin had
sustained grievous injury in her left occipital region.
Dr. Krishan Kumar Sharma, C.W.1 has performed the
postmortem on the dead body of the deceased Gabrial Samad. He has proved
the postmortem report, which is Ext.-6. His deposition in the court substantiates
his findings in the postmortem report.
7. On the basis of both oral and documentary evidence adduced by
the prosecution, the learned court below held the appellant guilty and
sentenced him accordingly.
8. Ms. Nalini Jha, learned lawyer appearing on behalf of the
appellant, has submitted that there is vital contradiction in the statement of the
prosecution witnesses on the manner of occurrence. It was further submitted
that the Investigating Officer has not recorded the statement of Chiristina Surin
P.W.-6 and Pratima Surin P.W.-7 in the case diary which has caused prejudice
to the case of the appellant. On these grounds, it was prayed that judgment of
conviction and order of sentence passed by learned court below be set aside.
9. Mr. Saket Kumar, learned A.P.P. for the State, has submitted that
prosecution witnesses have corroborated each other on the point that it was the
appellant who had assaulted the deceased Gabrial Samad by axe due to which
he succumbed to his injuries. He has further submitted that Chiristina Surin and
Pratima Surin are injured witnesses and they have supported the prosecution
case. Their ocular account is corroborated by the injury reports. According to
him there was no incongruity in the statement of prosecution witness to
disbelieve them. On these grounds, it was prayed that the present appeal be
dismissed.
10. Now, it has to be ascertained, whether the prosecution has been
able to prove its case against the appellant, namely, Jospat Jojo beyond all
reasonable doubt.
In order to come to the aforesaid finding, it has to be ascertained:-
(i) whether the testimony of Chiristina Surin and
Pratima Surin who are injured witnesses can be read in
evidence?
(ii) Whether the deceased Gabrial Samad died a
homicidal death?
(iii) Whether the appellant caused the homicidal death of
the deceased ?
(iv) Whether the appellant caused injuries to Chiristina
Surin and Pratima Surin?
11. It is case of the defence that statement of Chiristina Surin P.W.-6
and Pratima Surin P.W.7 cannot be read in evidence as their statement was not
recorded under Section 161 Cr.P.C. by the Investigating Officer. Their
examination as prosecution witnesses has taken the appellant by surprise which
is against the concept of a fair trial.
Ram Sarovar Singh P.W.-8, the Investigating Officer at
paragraph-1 of his deposition has stated that he had taken the statement of
Chiristina Surin and Pratima Surin who have supported the prosecution case.
However, in his cross-examination, he has admitted that he had not
incorporated their statement in the case diary.
Section 161 of Cr.P.C. relates to examination of witnesses by
police during the course of investigation. Section 161(1) Cr.P.C.
Provides that Any police officer making an investigation under
this chapter, or any police officer not below such rank as the State
Government may, by general, or special order prescribed in this
behalf, acting on the requisition of such officer, may examine
orally any person supposed to be acquainted with the facts and
circumstances of the case.
Thus, it is clear that the Investigating Officer can examine a
witness orally during the course of investigation.
Section 161 (3) of Cr. P.C Further Provides that:-
"A police officer may reduce into writing any statement
made to him in the course of an examination under this section; and if
he does so, he shall make a separate and true record of the statement of
each such person whose statement he records."
(Provided that statement made under this sub-section may
also be recorded by audio video electronic means).
Thus from the plain reading of provisions of Section 161
(1) and (3) of Cr.P.C., it transpires that during the course of investigation
the investigating officer can examine a witness orally. He can also
reduce the statement of witness in writing. However, if the statement of
witness has been reduced to writing the same has to be incorporated in
the case diary.
The keyword in Section 161 Cr.P.C. is "may" and not
"shall". The word "shall" is an imperative command, usually indicating
that certain actions are mandatory, and not permissible. This contrasts
with the word "may" which is generally used to indicate a permissive
provision, ordinarily some degree of discretion.
In J.B. Roy Vs. State of Andhra Pradesh reported in
AIR 1968 Andhra Pradesh 236, it was held that:-
"Now, under Section 161 Cr.P.C., any police officer
referred to in that section may examine orally any person supposed to be
acquainted with the facts and circumstances of the case. Such a Police
Officer may reduce into writing any statement made to him in the course
of an examination. It is thus manifest that under Section 161, it is not at
all necessary that the Police Officer should record any statements when
making an investigation and indeed the law does not require any
statement to be recorded by the Police in an investigation. It is left to the
discretion of the Investigating Officer to examine orally any person or
reduce his statement into writing"
Thus, it is evident that it is upon the discretion of the
Investigating Officer whether he examines a witness orally or reduces
his statement in writing during investigation. It is only when the
statement of witness is reduced in writing during investigation it has to
be made part of the case diary.
In Zahira Habibulla H. Sheikh Vs. The State of Gujarat, The
Hon'ble Apex Court while laying down the concept of fair trial has
held that:-
36." The Principles of rule of law and due process are
closely linked with human rights protection. Such rights can be
protected effectively when a citizen has recourse to the courts of
law. It has to be unmistakably understood that a trial which is
primarily aimed at ascertaining the truth has to be fair to all
concerned. There can be no analytical, all-comprehensive or
exhaustive definition of the concept of a fair trial, and it may
have to be determined in seemingly infinite variety of actual
situations with the ultimate object in mind viz. Whether
something that was done or said either before or at the trial
deprived the quality of fairness to a degree where a miscarriage
of justice has resulted. It will not be correct to say that it is only
the accused who must be fairly dealt with. That would be turning
a Nelson's eye to the needs of the society at large and the victims
or their family members and relatives. Each one has an inbuilt
right to be dealt with fairly in a criminal trial. Denial of a fair
trial is as much injustice to the accused as is to the victim and the
society. Fair trial Obviously would mean a trial before an
impartial judge, a fair prosecutor and atmosphere of judicial
calm. Fair trial means a trial in which bias or prejudice for or
against the accused, the witnesses, or the cause which is being
tried is eliminated. If the witnesses get threatened or are forced to
give false evidence that also would not result in a fair trial. The
failure to hear material witnesses is certainly denial of fair trial "
12. From the averment made in the Fardbeyan, it is apparent that
Chiristina Surin and Pratima Surin are injured witnesses of this case. The
Investigating Officer had examined them orally, their statement has not been
reduced to writing and they have also not been named as prosecution witnesses.
However, they are the material witnesses of this case and failure to hear them
will certainly amount to denial of fair trial to the victim. It is true that they have
not been named as witness in the charge-sheet and the better course of action
for the trial court would have been to examine them as court witnesses, but
their examination as prosecution witnesses can in no way be said to have taken
the appellant by surprise, so as to lead to miscarriage of justice.
13. Chiristina Surin P.W.6 has stated that the occurrence took place
three years ago at about 06:00 A.M., she was standing outside her house when
she saw Jospat Jojo assaulting Gabrial Samad by an axe due to which he
succumbed to his injuries. She has further stated that Jospat Jojo assaulted her
by an axe resulting in injury. In her cross-examination, she has submitted that
she has not seen Gabrial Samad being assaulted by the appellant Jospat Jojo.
Pratima Surin P.W.7 has stated that the occurrence took place
three years ago at about 06:00 A.M. Jospat Jojo had assaulted Gabrial Samad
on his head by an axe due to which he died at the spot. She has further stated
that Jospat Jojo had also assaulted Gabrial Samad by an axe causing injuries,
in her Cross-examination, she has stated that she has seen Jospat Jojo assaulting
Gabrial Samad by an axe. She has also seen Jospat Jojo assaulting Chiristina
Surin P.W.6.
Jusphina Samad P.W.5 has also stated that the appellant had
assaulted Chiristina Surin and Pratima Surin by an axe due to which they
sustained injuries. He had also assaulted her husband.
Alfred Surin P.W.9 has also stated that occurrence took place
three years ago. Appellant assaulted Gabrial Samad by an axe and he also
assaulted Pratima Surin and Chiristina Surin due to which they sustained
injuries.
All these witnesses have corroborated each other on the point that
the appellant Jospat Jojo has assaulted Chiristina Surin and Pratima Surin by an
axe due to which they sustained injuries.
Dr. Surjit Lakra, P.W.10 has stated that on 21.10.2009 at about
03:15 P.M., he examined Christina Surin and found the following injuries on
her body.
Longitudinal sharpcut 3"X ¼"X ½" on right post auricular region.
Transverse lacerated wound 2" X ½" x scalp deep on
occipital region; and as per the opinion of the doctor the
nature of injury No.(i) is simple and caused by sharp
cutting weapon and injury No.(ii) is also simple caused by
hard blunt substance.
On the same day, he examined Pratima Surin and found the
following injuries on her person.
(i) Stitched wound 3" on mid-perital region;
(ii) Transversa stitched wound 2" on in occipital region;
(iii) Longitudinal stitched wound 3" on left perital region;
(iv) Longitudinal stitched wound 3" on left perital region;
He has proved the injury reports which are Ext.4 Series. From the
perusal of injury reports of Chiristina Surin Ext.4 and Pratima Surin Ext.4/1, it
is evident that the deposition of Dr. Surjit Lakra P.W.10 is substantiated by the
findings in the injury reports.
Thomas Justin Minj, P.W.11 had examined Pratima Surin P.W.7 in
RIMS Ranchi. He found the following injuries on her person.
(i) Stitched wound about 5" long over left side of head on temporal
region.
(ii) Stitched wound about 3" long over left occipital region of head;
(iii) Stitched wound over right side of perital region;
C.T. Scan of Brain and Skull done in RIMS on 23.10.2009 vide
Registration No. 24352 and the report of C.T. Scan shows non-hemorrhagic
contusion in left temporal occipital lobe with depressed comminuted fracture
of left temporal bone. He has proved the report of C.T. Scan which is Ext.5.
From the perusal of the C.T. Scan report Ext.5, it is evident that
the oral testimony of Thomas Justin Minj P.W.11 is substantiated by his
findings in C.T. Scan report (Ext.5). The injuries on her head were found to be
grievous in nature.
From the aforesaid ocular account of both Chiristina Surin P.W.6
and Pratima Surin P.W.7, as well as the medical evidence it transpires that
Chiristina Surin had sustained simple injuries on her person, while Pratima
Surin had sustained grievous injury on her head which is vital part of the body.
The aforesaid injuries have been said to be caused by sharp cutting weapon.
Accordingly, the prosecution has been able to prove the presence
of both Chiristina Surin P.W. 6 and Pratima Surin P.W.7 at the place of
occurrence. Prosecution has also been able to prove that the injuries caused to
both these witnesses were inflicted by the appellant Jospat Jojo by axe.
14. On the point of homicidal death of deceased Gabrial Samad,
prosecution had adduced both oral and documentary evidence.
From the perusal of carbon copy of inquest report of the deceased
Gabrial Samad (Ext.1), it appears that injury was found on the right forehead,
and above the right eye. It has been stated that the injuries were caused by
sharp cutting weapon.
Dr. Krishna Kumar Sharma C.W.1 has performed postmortem on
the dead body of the deceased Gabrial Samad and he found the following:-
(i) Incised wound of size about 2"X ½" x bone deep over
anterior side of right perital region of skull.
(ii) Incised wound of size about 2"X ½" x muscle deep just
lateral to injury no.1.
(iii) Incised wound of size about 2"X ½" x muscle deep just
lateral and anterior of injury No.02.
(iv) Incised wound of size about 2"X ½" x bone deep over right
side of forehead.
(v) Incised wound- 2"X ½" x bone deep just below right eye.
And as per the opinion of the doctor, all the injuries were caused
by sharp cutting weapon and were ante-mortem in nature. Cause of death has
been opined by the doctor to be due to the above noted injuries. He has proved
the postmortem report which is Ext.6. In his cross-examination, he has stated
that the above injuries are not possible by a tall or hard surface or stones.
From the aforesaid findings in the inquest report and from the
medical evidence, it is evident that the deceased Gabrial Samad died due to
incised ante-mortem injuries found on vital part of his body which was caused
by sharp cutting weapon. The aforesaid injuries cannot be said to be self
inflicted or accidental. Accordingly, we come to a finding that the deceased
Gabrial Samad died a homicidal death.
15. On the point of culpability of the appellant Jospat Jojo in
committing murder of the deceased Gabrial Samad, Jusphina Samad P.W.5 has
stated that the occurrence took place three years ago at about 06:00 AM., the
appellant Jospat Jojo had assaulted her husband and Pratima Surin by an axe,
her husband died at the place of occurrence. In her cross-examination, she has
stated that she had come to Tati Village where the occurrence took place and
she is the eye witness of the occurrence.
Both, Chiristina Surin P.W.6 and Pratima Surin P.W.7, who are
the injured witnesses have stated that appellant Jospat Jojo assaulted Gabrial
Samad by axe due to which he died at the place of occurrence. Chiristina Surin
P.W.6 in her cross-examination has stated that she had not seen the appellant
actually assaulting the deceased but Pratima Surin P.W.7 has stated that she is
witness to the assault on the deceased Gabrial Samad by Jospat Jojo by means
of an axe. Alfred Surin P.W.9 has also stated that Jospat Jojo had given axe
blow to Gabrial Samad due to which he succumbed to his injuries. In his cross-
examination he has stated that he is the eye witness of the occurrence. There is
no major contradiction in the statement of aforesaid witnesses on the point that
the appellant Jospat Jojo had given axe blows to the deceased Gabrial Samad
resulting in his death. The ocular account of these witnesses have been
corroborated by the medical evidence. Accordingly, we come to a finding that
the prosecution has been able to prove that the appellant Jospat Jojo had
assaulted the deceased Gabrial Samad resulting in his death.
Summing up, it is evident that the prosecution has been able to
prove that the appellant Jospat Jojo had assaulted Chiristina Surin, Pratima
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Surin and Gabrial Samad by an axe. Chiristina Surin sustained simple injuries
while Pratima Surin sustained grievous injuries on her vital part and Gabrial
Samad succumbed to his injuries.
16. Accordingly, the prosecution has been able to prove its case
against the appellant beyond all reasonable doubt for the offence under sections
324, 307, and 302 of the Indian Penal Code. The learned court below has
rightly held him guilty. The sentence passed by the learned court below is also
commensurate with the gravity of the offence and does not require any
interference.
This appeal is dismissed.
(Rongon Mukhopadhyay, J.)
(Ambuj Nath, J.)
Jharkhand High Court Ranchi
Dated: 20.07.2022
Saurabh/-NAFR
