Jharkhand High Court
Etwa Kimbo @ Dholko Kimbo vs The State Of Jharkhand on 21 October, 2024
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No.1415 of 2016
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(Against the judgment of conviction dated 22.08.2016 and order of sentence
dated 24.08.2016 passed by learned Sessions Judge, West Singhbhum at
Chaibasa in Sessions Trial No. 37 of 2015)
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Etwa Kimbo @ Dholko Kimbo, son of late Vishnu Kimbo, resident of
village Panchpahiya, PO and PS Jaraikela, District Singhbhum West
at Chaibasa ... Appellant(s).
Versus
The State of Jharkhand ... Respondent(s).
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PRESENT
SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
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For the Appellant(s) : Md. Zaid Ahmed, Advocate
For the Respondent(s) : Mr. Vineet Kumar Vashistha, Spl.PP
.........
JUDGMENT
21st October 2024
Per Ananda Sen, J.: We have heard the learned counsel appearing for the
appellant and the learned counsel for the State at length.
2. This Criminal Appeal arises out of the judgment of
conviction dated 22.08.2016 and order of sentence dated
24.08.2016 passed in Sessions Trial No. 37 of 2015 whereby and
whereunder learned Sessions Judge, West Singhbhum at
Chaibasa convicted the appellant under Section 302 of the Indian
Penal Code and sentenced him to undergo RI for life with a fine
of Rs. 10,000/-.
3. The learned counsel for the appellant submits that there is
no eye-witness to the occurrence of murder. All the witnesses are
hearsay witnesses who came to know about the occurrence on
the next day. Only on the basis of suspicion this appellant has
been convicted in this case. There is serious contradiction in the
statement of the witnesses. There is no legal evidence to convict
the appellant. The minor daughters of the appellant have not
been examined in support of the prosecution case, which is fatal.
The brothers of the appellant have falsely implicated him as they
have greedy eyes on the property.
4. The learned counsel for the State submits that admittedly
the deceased died in the house of this appellant. There is
sufficient proof that the death is homicidal. The daughters of this
appellant are minor children, thus they were not examined, but
PW's have stated that it is the children of this appellant who had
stated that this appellant has committed murder of the deceased.
Further State Forensic Laboratory Report which is Exhibit-2 has
been marked without objection which supports that it is this
appellant who had committed the murder. On this basis he
submits that conviction be sustained.
5. The informant in this case is the Village Munda who is
PW1. He stated that on 12.07.2014 he received information from
the villagers that this appellant has murdered his wife by
assaulting her. The informant and other villagers went to the
house of this appellant and saw the dead body of his wife lying
in the pool of blood. In front of several villagers, on interrogation
he disclosed that at night there was a scuffle due to which he got
enraged and killed his wife by assaulting her with the tangi (axe).
FIR was registered being Jaraikela PS Case No. 03 of 2014 under
section 302 of the Indian Penal Code.
6. After investigation, the Investigating Officer submitted
chargesheet against the appellant for the offence punishable
under Section 302 of the Indian Penal and the appellant was put
on trial.
7. On the basis of chargesheet and materials available on
record cognizance was taken and case was committed to Court
of Sessions where charges were framed under Section 302 of the
Indian Penal Code and trial proceeded.
8. To prove the prosecution case, altogether 9 witnesses were
examined by the prosecution, who are as under:-
i. PW1 :- Raibu Kimbo
ii. PW2 :- Motilal Kimbo
iii. PW3 :- Nageshwar Kimbo
iv. PW4 :- Deba Kimbo
v. PW5 :- Kedar Kimbo
vi. PW6 :- Mansingh Kimbo
vii. PW7 :- Rup Singh Rautiya
viii.PW8:- Binod Prasad Singh
ix.PW9:- Dr. Braj Kishore Pandey
9. Following documents have been exhibited :
i. Ext.1 - Fardbeyan of informant
ii. Ext.1/1- Signature of Raibu Kimbo (PW1) on seizure list
iii. Ext.1/2- Endorsement on fardbeyan of Binod Prasad Singh
(PW8)
iv. Ext.2 - S.F.S.L Ranchi, Report No. 733/14 dated 29.05.15
v. Ext.3 - Formal FIR
vi. Ext.4 - Carbon copy of Inquest Report of deceased.
vii. Ext.5 - Seizure list
viii. Ext.6 - Postmortem Report of deceased.
10. Admittedly there is no eye witness to the said occurrence.
The trial Court has also taken note of the aforesaid fact. PW4 is
the brother of the appellant and PW6 is the cousin of the
appellant. They both stated that there was often quarrel between
the husband and the wife. They also stated that they got
information about death of the wife of this appellant and when
they went to appellant's house, they saw the dead body. PW4
stated that it is the children of the deceased who informed him
that this appellant has committed murder of their mother but
surprisingly the prosecution did not examined those children.
11. The FIR is at the instance of PW1 who also narrated that he
got information that this appellant had committed murder of his
wife. He also had gone to the house of this appellant and saw the
dead body in his house. Thus, from the evidence of PW1, PW4
and PW6 it is clear that the dead body was found in the house of
this appellant in the early morning. Exhibit-4 is the inquest
report which also suggests that the dead body was recovered
from the house of the appellant.
The next point which needs to be considered is about death
of the deceased and whether the same is homicidal or not.
The Doctor who conducted the postmortem is PW9. He
found the following injuries on the dead body of the deceased.
External findings:
(i) Rigor mortis present
(ii) Swollen face and left ear bleed.
(iii) 2" x ½ " lacerated wound over chin bone deep. Maxillary
bone fractured on left side. Mandibular bone fracture on left
side, resulting in sagging of face. Temporal bone on left side of
scalp fractured and over lying wound measures 2½" x 1".
(iv) Forearm on left side bear lacerated wound 1" x ½ ".
(v) Chest wall - compression fracture of anterior chest wall
bones with fracture of sternum.
Internal findings:
(i) Cranial cavity - Hemocranium on c/s brain.
(ii) Chest - Hemothorax due to puncture of lung bilaterally.
(iii) Abdomen cavity - Hemoperitoneum. Blood in stomach.
Cause of death - Haemorrhage, due to above injuries
caused by hard, heavy and blunt surface of the object. In the
opinion of the doctor above mentioned antemortem injuries on
head, face and chest are sufficient to cause death in ordinary
course of nature.
12. The postmortem report is marked as Exhibit-6. From the
postmortem report we find that the deceased died homicidal
death.
13. Though no one had seen this occurrence but admittedly the
deceased died an homicidal death, the deceased is the wife of
this appellant and the deceased died in the house of this
appellant. The body was found in the early morning. The
appellant in his statement under section 313 of the Cr.P.C had
taken a plea that as he was threatened, he fled from his house but
this statement is not corroborated by any of the witnesses. His
alibi has not been proved. Rather PW4 and PW6 have stated that
there was frequent quarrel between the husband and the wife.
14. The FSL Report shows human blood of Group-A which
was detected in the blood stained tangi and the shawl of the
deceased. This clearly suggests that the murder weapon was the
axe. Prosecution has proved the murder weapon.
15. When all these aforesaid circumstances have been proved,
Section 106 of the Indian Evidence Act comes to play in this case.
Section 106 of the Indian Evidence Act reads as follows:
106. Burden of proving fact especially within knowledge. -
When any fact is especially within the knowledge of any
person, the burden of proving that fact is upon him.
This provision has been made to deal with this type of
cases where the occurrence takes place within four corners of the
wall and inside the closed door. The appellant being the husband
and resident of the house where the deceased was found dead
was supposed to explain as to how the deceased died but he
failed to do so. This is an additional circumstance against the
appellant. Further the alibi which he had resorted to has not been
proved by him, which is also an additional circumstance to
implicate him.
16. All the aforesaid facts and evidence has been taken note of
and considered in a proper manner by the learned Sessions
Judge who convicted the appellant under section 302 of the
Indian Penal Code and punished him to undergo rigorous
imprisonment of life.
We find no material to differ with the said findings of the
Trial Court thus this Criminal Appeal stands dismissed.
17. Accordingly, the judgment of conviction dated 22.08.2016
and the order of sentence dated 24.08.2016 passed by learned
Sessions Judge, West Singhbhum at Chaibasa in Sessions Trial
No.37 of 2015 are affirmed.
18. In this case, Md. Zaid Ahmed, the learned counsel was
appointed by the Jharkhand High Court Legal Services
Committee to represent the appellant. Considering proper
assistance of Md. Zaid Ahmed, the learned counsel, we direct the
Jharkhand High Court Legal Services Committee to pay a
remuneration of Rs. 7,500/- to Md. Zaid Ahmed, the learned
counsel for the appellant.
19. Let a copy of the judgment along with the Trial Court
Records be sent back to the Court concerned forthwith.
(ANANDA SEN, J.)
(GAUTAM KUMAR CHOUDHARY, J.)
High Court of Jharkhand, Ranchi
Dated : 21/10/2024
Tanuj/
N.A.F.R.
