Jharkhand High Court
Kishor Tirkey Son Of Josef Tirkey vs The State Of Jharkhand on 4 March, 2024
Author: Ananda Sen
Bench: Ananda Sen
Criminal Appeal (D.B.) No. 1391 of 2016
[arising out of Judgment of conviction dated 15th
day of June, 2016 and order of sentence on 23rd
day of June, 2016 passed by the Additional
Sessions Judge, Simdega in Sessions Trial
No.40 of 2012]
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Kishor Tirkey son of Josef Tirkey, resident of Village: Sarpmunda,
PO PS Kurdeg, Dist. Simdega. ... Appellant
-versus-
The State of Jharkhand ... Respondent
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For the Appellant : Mr. Peeyush Krishna
Choudhary, Advocate
For the Respondent : A.P.P.
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PRESENT: SRI ANANDA SEN, J.
SRI SUBHASH CHAND, J.
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JUDGMENT
Per Ananda Sen, J. Appellant has preferred this appeal against the Judgment of
Conviction and Order of Sentence dated 15.06.2016 and 23.06.2016,
respectively, passed by the Additional Sessions Judge, Simdega in Sessions
Trial No.40 of 2012 arising out of Kurdeg Police Station Case No.22 of 2011
(G.R. No.275 of 2011), whereby the appellant has been convicted for offence
under Section 302 of the Indian Penal Code and sentenced to undergo
rigorous imprisonment for life and to pay a fine of Rs.10,000/- (Rupees Ten
Thousand) for the offence under Section 302 of the Indian Penal Code and in
case of default of payment of fine, to undergo simple imprisonment for 4 (four)
months.
2. On 08.08.2011 at about 11.00 O'Clock, the incident took place
when the informant was cultivating his harvest field along with his younger son
Kishore Tirkey (appellant). The occurrence started with an altercation between
the younger son Kishore Tirkey (appellant) and elder son Francis @ Lodha
Tirkey (deceased). Deceased had asked the appellant to open ploughing
instrument (HAL) and to return home saying that harvest field will be cultivated
tomorrow, which the appellant had denied. The deceased then asked the
appellant as to why he is cultivating the harvest field with the old father. The
appellant assaulted the deceased with Tangi (axe) on his head and neck 8-10
times, as a result of which the deceased died at the spot.
3. Based on the farbeyan of the informant, Kurdeg Police Station
Case No.22 of 2011 was registered for offence under Section 302 of the Indian
Penal Code. After investigation, Chargesheet was submitted on 31.08.2011
under Section 302 of the Indian Penal Code, whereupon cognizance of the
offence was taken on 15.09.2011. The case was committed to the Court of
Sessions. Charge was framed against the appellant being the sole accused
under one head under Section 302 of the Indian Penal Code to which the
appellant pleaded not guilty and claimed to be tried.
4. The prosecution, in order to bring home the charges, examined
ten witnesses, namely, P.W.1 Praful Minz, P.W.2 Bhinsent Kujur, P.W.3
Joseph Tirkey, P.W.4 Salestin Ekka, P.W.5 Anil Kujur, P.W.6 Praveen Soreng,
P.W.7 Marianus Tirkey, P.W.8 Sri Ram Ram, P.W.9 Dr. Peter Michael Bara
and P.W.10 Sanjay Kumar Singh.
Additionally, the following documents were also exhibited on
behalf of the prosecution: -
Ext. 1 & 2 : Signature of Praful Minz on two Seizure Lists
Ext. 3 : Signature of Bhinsent Kujur on Inquest Report
Exts. 1/1, 2/1 & 4 : Signature of Anil Kujur on three Seizure lists
Ext. 3/1 : Signature of Praveen Soreng on the Inquest Report
Ext. 5 : Fardbeyan
Ext.5/1 : Formal F.I.R.
Ext.6 : Postmortem Report
Ext.1/2 & 2/2: Two Seizure Lists
Ext. 3/2 : Inquest Report
Ext.7 : F.S.L. Report
Ext. 8 : Forwarding letter and Chalan relating to material
Exhibit
Material Ext.I : Blood Soil
Material Ext.II: Tangi
Material Ext.III: One T. Shirt
P.W.1 Praful Minz has stated that the police had seized blood
smeared soil and one Tangi (axe) in his presence over which he had put his
signature. He has proved his signature on both the seizure lists, i.e., Ext.1 and
2. The appellant was arrested in presence of this witness.
P.W.2 Bhinsent Kujur has stated that inquest report was prepared
in his presence and he had put his signature over the same. He has proved his
signature on the inquest report as Ext.3.
P.W.3 Joseph Tirkey is the informant and he is the father of both
the appellant and the deceased. He has stated that at the time of occurrence,
he was cultivating his harvest field with the appellant, but in the meantime the
deceased, who is his elder son, came there and asked the appellant as to why
he is cultivating the harvest field with the old man and asked to set free
cultivating instrument (HAL). He stated that on this, the appellant assaulted on
head of the deceased, whereafter this witness went in the village and
disclosed the occurrence to the co-villagers. Thereafter the deceased was
brought in a vehicle to Simdega, where in course of treatment the deceased
died. In paragraph 2 of his deposition, this witness has stated that at that time,
the mental state of the appellant was not good. Earlier also the appellant used
to get psychic. This witness has stated that at the time when the appellant had
assaulted the deceased with tangi (axe), the mental state of the appellant was
not good. This witness has stated that there was no dispute between the two
brothers from before.
P.W.4 Selestin Ekka has been declared hostile.
P.W.5 Anil Kujur has proved his signature on the three seizure
lists as Ext.1/1, 2/1 and 4. He has stated that the police had seized in his
presence the blood smeared soil.
P.W.6 Praveen Soreng proved his signature on the inquest report
as Ext.3/1.
P.W.7 Marianus Tirkey has stated that the appellant had killed the
deceased. He stated that the occurrence is of three years past. In cross
examination this witness has stated that he had heard about the occurrence.
P.W.8 Sri Ram Ram is the investigating officer of the case. He
has stated on the date of occurrence, he was posted at Kurdeg Police Station,
when on the basis of the fardbeyan of Joseph Tirkey, police case was
registered and investigation was handed over to him. He has stated to have
prepared the Inquest Report. He has stated that he inspected the place of
occurrence and has also stated the boundaries of the place of occurrence in
his deposition. He has stated about the seizure of blood stained Tangi (axe),
which was sent to the Forensic Science Laboratory. He has also proved the
handwriting and signature of Narendra Mohan Sinha, the then Officer-in-
Charge of Kurdeg Police Station and ASI Rajniti Paswan, which were marked
Ext.5 and 5/1. He has also proved the seizure lists in the handwriting of
Narendra Mohan Sinha as Ext. 1/2, 2/2 and has also proved the signature of
Narendra Mohan Sinha on the Inquest Report as Ext. 3/2.
P.W.9 is Dr. Peter Michael Bara, who had conducted the
postmortem examination on the deadbody of the deceased Francis Tirkey. He
had found the following: -
General Examination : Average built, rigor mortise present in all
four limbs, body not decomposed.
External Examination : Both eyes closed and mouth closed.
External injuries :
(i) Lacerated wound about 2" x ½" x ½" between nose and left
eye
(ii) Sharp Cut wound 2" x 1" x 1" at right side of eye
(iii) Lacerated wound about 2" x 1" x 1" at anterior of right ear.
(iv) Blunt lacerated injury about 4" x 2" x ½" with fracture of
occipital bone of right side of head.
(v) Lacerated wound 2" x 1" x 1" at the level of 1st cervical area
of neck on right side.
(vi) Lacerated wound 2" x 1" x 1" just below 2nd cervical area on
back of neck.
(vii) Lacerated wound 2" x 1" x 1" over third cervical area of
neck.
(viii) Lacerated wound 2" x 1" x 3" cutting 3rd cervical vertebra on
back of neck.
(ix) Lacerated wound 2" x 1" x 1" at the level of 2nd and 3rd
cervical vertebra at back of neck.
(x) Lacerated wound 2" x 1 ½" x 1" at the level of 5th cervical
vertebra on back of neck.
This witness has opined the cause of death to be cardio
respiratory arrest due to above injuries. During his evidence he proved the
Postmortem Report as Ext.6.
P.W.10 Sanjay Kumar Singh is an Assistant Sub Inspector. During
his evidence, he proved the Blood Stained Soil as Material Ext.I, One Tangi
(axe) as Material Ext.II and One Old T. Shirt as Material Ext.III. He also proved
the forwarding letter and chalan relating to material exhibits as Ext.8.
5. After closure of the prosecution evidence, appellant being the sole
accused was examined under Section 313 of the Code of Criminal Procedure,
wherein he denied the charge against him and claimed to be innocent. In his
defence, the appellant did not adduce any evidence.
6. On the basis of analyzing the oral evidence, and the documentary
and material exhibits, adduced on behalf of the prosecution and after hearing
the argument of the defense and the prosecution, the Additional Sessions
Judge, Simdega by a judgment of conviction and order of sentence dated
15.06.2016 and 23.06.2016, respectively, passed in Sessions Trial No.40 of
2012 arising out of Kurdeg Police Station Case No.22 of 2011 (G.R. No.275 of
2011), convicted the appellant for offence under Section 302 of the Indian
Penal Code and sentenced him to undergo rigorous imprisonment for life and
to pay a fine of Rs.10,000/- (Rupees Ten Thousand) for the offence under
Section 302 of the Indian Penal Code and in case of default of payment of fine,
to undergo simple imprisonment for 4 (four) months.
7. Learned counsel for the appellant challenges the conviction and
sentence of the appellant on the ground that no independent witness has been
examined in this case save and except P.W.4 Salestin Ekka, who also has
been declared hostile by the prosecution. He further submits that P.W.3, who
is the informant, has stated that the mental state of the appellant was not good
at the time of occurrence, thus, he should have been acquitted. Learned
counsel for the appellant lastly submits that since in the spur of the moment
the incident had occurrence, the appellant could not have been convicted
under Section 302 of the Indian Penal Code.
8. Learned counsel appearing on behalf of the State submits that the
P.W.3 is the eye witness, who stated that repeated blows were given by the
appellant on the person of the deceased. The medical report also corroborates
the evidence of P.W.3. The blows being repeated, Section 302 of the Indian
Penal Code is applicable.
9. After hearing the parties, we find that the entire case is based
upon the testimony of eye witness, P.W.3 (the informant) and also based on
the medical evidence. It is the case of the prosecution that with the help of an
axe, the appellant gave repeated blows on the person of the deceased, who is
none other but his elder brother. P.W.1 and P.W.2 are the seizure witnesses,
who deposed that blood stained soil was seized and so was the axe - the
murder weapon and they are signatory to the seizure.
10. The main witness, P.W.3, is the father of the appellant and the
deceased. He clearly stated that the deceased asked the appellant as to why
he was forcing his old father to plough the field. On such question, the
appellant became enraged and then attacked the deceased and gave several
blows on the person of the deceased with an axe, which resulted in his death.
He also admits that there was no dispute between the two brothers. We find
that there is nothing in his evidence as to why he would falsely implicate his
son, who is the appellant. His testimony is corroborated by the medical
evidence. P.W.9 is the doctor, who conducted the postmortem. He found 10
wounds, which are on the vital parts of the body like cervical area and the
neck, occipital region, cervical vertebra etc. The doctor also opined that the
death was due to cardiac respiratory arrest because of the aforesaid injuries.
The medical evidence, thus, corroborates the ocular evidence.
11. A plea has been taken during evidence that the appellant is of
unsound mind, but, there is no proof of such alibi. There is no medical report of
the appellant, nor there is any such statement in the First Information Report.
Thus, statement to that effect is nothing but an afterthought to save the
appellant, who is none but his son.
12. It is well settled that the quantity of witnesses does not matter, but
it is quality of the witnesses, which is material. It is also well settled that even a
solitary eye witness, if he is reliable and his testimony is not doubtful or
tainted, is sufficient to convict the accused. The Hon'ble Supreme Court in the
case of Amar Singh versus State (NCT of Delhi), reported in (2020) 19 SCC
165, at paragraph 16 thereof has held as under: -
16. Thus, the finding of guilt of the two appellant-accused
recorded by the two courts below is based on sole testimony of
eyewitness PW 1. As a general rule the court can and may act on
the testimony of single eyewitness provided he is wholly reliable.
There is no legal impediment in convicting a person on the sole
testimony of a single witness. That is the logic of Section 134 of
the Evidence Act, 1872. But if there are doubts about the
testimony, the courts will insist on corroboration. It is not the
number, the quantity but quality that is material. The time-
honoured principle is that evidence has to be weighed and not
counted. On this principles stands the edifice of Section 134 of
the Evidence Act. The test is whether the evidence has a ring of
trust, is cogent, credible and trustworthy or otherwise [see Sunil
Kumar v. State (NCT of Delhi) [Sunil Kumar v. State (NCT of
Delhi), (2003) 11 SCC 367 : 2004 SCC (cri) 1055]]
13. On the touchstone of above principle, in this case, we find no
material to doubt or disbelieve the testimony of P.W.3. Moreover, the medical
evidence in this case also corroborates the testimony of sole eye witness,
P.W.3. Prosecution, thus, has proved the guilt of the appellant and his
involvement in the commission of offence is beyond all reasonable doubt.
14. In view of what has been held and observed hereinbefore, we find
no merit in this appeal. This appeal is, accordingly, dismissed. Pending
interlocutory applications, if any, stand disposed of.
15. Let the Trial Court Records be transmitted to the Court concerned
along with a copy of this judgment.
(Ananda Sen, J.)
(Subhash Chand, J.)
High Court of Jharkhand, Ranchi
Dated, the 4th March, 2024
Kumar/Cp-03
