Jharkhand High Court
Manoj Toppo vs The State Of Jharkhand on 5 September, 2024
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No.53 of 2016
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[Arising out of judgment of conviction dated 21.11.2015
and order of sentence dated 24.11.2015, passed by
learned Additional Judicial Commissioner - VI, Ranchi, in
Sessions Trial No.318 of 2011 arising out of Bariyatu P.S.
Case No.427 of 2010 corresponding to G.R. Case No.5722
of 2010.]
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Manoj Toppo, S/o Late Julius Toppo, Resident of Village Kanijadi,
P.S. Mander, P.O. Mahuajadi, District Ranchi. ... ... Appellant
Versus
The State of Jharkhand. ... ... Respondent
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PRESENT : SRI ANANDA SEN, J.
: SRI GAUTAM KUMAR CHOUDHARY, J.
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For the Appellant : Mr. Sanjeet Nayak, Advocate.
For the State : Mr. Suraj Deo Munda, A.P.P.
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JUDGMENT
By Court, :
This Criminal Appeal is preferred on behalf of the
appellant being aggrieved by the judgment of conviction dated
21.11.2015 and order of sentence dated 24.11.2015, passed by
learned Additional Judicial Commissioner - VI, Ranchi, in
Sessions Trial No.318 of 2011 arising out of Bariyatu P.S. Case
No.427 of 2010 corresponding to G.R. Case No.5722 of 2010,
whereby and wherein the appellant has been convicted for
offence under Section 302 of the IPC, for which he was
sentenced to undergo rigorous imprisonment for life with a fine
of Rs.2,000/- and in default of payment of fine amount, further
to undergo simple imprisonment for 6 months.
2. Heard learned counsel for the appellant and learned
A.P.P. for the State and perused the materials available on
record.
3. Learned counsel representing the appellant submitted
that the appellant has been erroneously convicted in this case as
the finding of the Trial Court convicting this appellant is without
taking into consideration of the fact that except P.W.-7 who is a 9
years old boy, there are no eye-witness to the incident. Learned
counsel stated that there are major contradiction in the evidence
of the witness and the place from where the appellant was
arrested. He further submitted that the alleged tangi used in
commission of offence was neither produced before the learned
Trial Court nor it was shown to the Doctor to ascertain as to
whether the injuries sustained by the deceased can be caused by
that tangi. He further submitted that the blood stained soil was
not sent for FSL examination. On these grounds, he implored
this Court to acquit this appellant.
4. Per contra, learned A.P.P. representing the State
submitted that the appellant has been rightly convicted in this
case. He stated that the appellant was angry on his wife for not
picking up his call, resulting in scuffle. Thereafter the appellant
in anger, took the tangi and gave a blow on the head of sister of
the informant, resulting in her death on the way to hospital. He
further submitted that P.W.-7 who is the eye-witness has
witnessed the incident of murder of his mother by his father with
tangi. Learned A.P.P. submitted that the fact that appellant has
assaulted his deceased wife with tangi on her head cannot be
brushed aside as there was blood around the body of the
deceased and the appellant fled away after assaulting his wife.
5. The case of the prosecution is that on 26.12.2010,
the informant Shankar Lohra gave his fardbeyan at RIMS Ranchi,
Emergency ward at 19:45 P.M. that his sister Binita Toppo
(deceased) was living with Manoj Toppo (appellant), with whom
she was married three years ago and she had a son namely
Shiva Toppo aged about 9 years from her earlier marriage, who
was living with her. She was living in the house of Tribhuwan
Nath Pandey and was working as maid in the vicinity. Manoj
Toppo was working in a Private School. On the date of
occurrence when informant came to meet his sister and nephew,
his sister and brother-in-law were not in the house. In the
evening at 07:00 P.M., his brother-in-law came to the house and
thereafter his sister also came there and an altercation started
between them and then his brother-in-law Manoj Toppo
assaulted his sister Binita Toppo with axe on her head and she
fell on the ground and blood oozed from her head. Thereafter
Manoj Toppo fled away from there after seeing the blood. The
informant with the help of Landlord took his sister to RIMS
hospital, but she died on the way. The F.I.R. was registered on
basis of the aforesaid statement.
6. The prosecution has altogether adduced 07 witnesses,
after framing of charge, to prove its case.
7. P.W.-1 is Binod Thakur, who was declared hostile by
the prosecution.
8. P.W.-2 is Rita Devi. She was also a tenant in the same
house, like the appellant. She deposed that after hearing quarrel
between the husband and wife, she with her landlady went
inside the house of appellant and saw the wife of the appellant is
lying on the ground and blood was oozing. She was taken to the
hospital but she died on the way.
9. P.W.-3 is Dr. Sanjeev Kumar. He is the Doctor posted
as Tutor in the Department of F.M.T. RIMS, Ranchi. He had
conducted the post-mortem of the dead body of the deceased
Binita Toppo on 27.12.2010 at 13.30 P.M. and found the
following injury:-
Lacerated wound
i. 8 cm x 1 cm x soft Tissue front of left forehead
ii. 5 x 1 cm x soft Tissue over right occipital region of head.
iii. 4 cm x ½ cm x soft Tissue back of right index finger.
Internal Injury
(i) There is contusion of brain and presence of subdural blood
and blood clots over both sides of Brain.
He opined that the above noted injuries are antimortem, caused
by hard and blunt substance. Death is due to head injuries.
Time since death is 12 hrs to 24 hrs from the time of Post-
mortem examination. He has proved the post-mortem report i.e.
marked as Ext.2.
P.W.4 is Rajendra Pandey. He is the Landlord of the
house where the appellant and deceased lived in a servant's
quarter. He was informed about the occurrence by his daughter
over telephone. He deposed that when he visited the quarter he
found Binita Toppo lying unconscious and blood was oozing from
her head and Manoj Toppo fled away. He had proved his
signature on the fardbeyan given by Shankar Toppo (Lohra)
which was marked as Ext.3. He has also proved his signature on
the seizure list of blood stained soil i.e. marked as Ext.1/1. He
has proved his signature on the Inquest Report i.e. marked as
Ext.4.
P.W.-5 is Shankar Lohra. He is the informant of this
case and is the brother of deceased Binita Toppo. He deposed
that he came to the house of his sister on the date of occurrence
and saw his sister lying in blood and his nephew was making a
hue and cry that his mother is killed by his father Manoj Toppo
by axe. He has proved his signature in the fardbeyan i.e. marked
as Ext.5 and has also proved his signature in the inquest report
i.e. marked as Ext.4/1. In para-6 of his deposition i.e. in cross-
examination he deposed that marriage of his deceased sister
was not solemnised with Manoj Toppo.
P.W.-6 is Kapildev Singh. He is the Investigating
Officer of this case. He has written the fardbeyan of informant
Shankar Lohra and has proved the fardbeyan i.e. marked as
Ext.6. He has also proved the seizure list of axe which was
seized from the place of occurrence i.e. marked as Ext.7. He has
proved the First Information Report which is in the writing of
Munshi Dinesh Chourasia, of Police Station; which was marked
as Ext.8. He has also proved the inquest report in writing and
signature of Ram Mahesh Pandey, marked as Ext.9.
P.W.-7 is Shiva Toppo. He is the minor son of the
deceased Binita Toppo. He is the eye witness of the occurrence.
He deposed that on the date of occurrence, his mother was
lighting the stove for preparing food. His father Manoj Toppo
came there and slapped her mother and when she fell on the
ground, he took out the axe and assaulted on the head of his
mother and blood oozed from her head and on raising alarm, the
Landlord came and he called his uncle. Thereafter his uncle and
landlord took his mother to hospital but on the way she died. In
cross-examination, he stated that his parents used to quarrel
regularly and on the date of incident also they were quarrelling.
10. After closure of the evidence of the prosecution, the
appellant was examined under Section 313 Cr.P.C. and after
considering the evidence and arguments of both the parties, the
Trial Court convicted the appellant for the aforesaid offences.
11. As per the prosecution case, the incident of assault
upon the deceased was occurred on 26.12.2010 and the
deceased died on the same day. The cause of death has been
narrated by the Doctor (P.W.-3) who had conducted the post-
mortem upon the deceased. As per him, there were three
lacerated wound but two of them were on the left forehead and
head, the other was on the index finger. The death was due to
head injury. The post-mortem report was duly exhibited and
marked as Ext.2.
12. From the evidence of the Doctor and the post-mortem
report, the prosecution has been able to prove that the death is
homicidal. If we analyse the evidence of the other witnesses, we
find that P.W.2 - Rita Devi who is an independent witness and
was also a tenant in the same premises where the deceased and
the appellant was living, we find that she stated that she heard
noise of quarrel between the husband and the wife i.e. appellant
and the deceased. On hearing the noise when she went there
and she saw that the deceased was lying in a pool of blood.
Though, from the evidence of this witness, we find that this
witness has not seen the appellant assaulting the deceased but
this fact has been established that there was a quarrel between
the husband and the wife.
13. P.W.-7 is none but the son of the deceased. From his
evidence, we find that he is an eye witness and was at the place
of occurrence. He stated that the father slapped the mother and
she fell down and then he took out the axe which was kept
beneath the bed and assaulted the deceased. His mother started
writhing when the appellant fled from the place. The entire
incident occurred as because the deceased questioned the
appellant as to why this appellant is troubling / annoying her, as
the appellant is not doing any work. Thus, from his evidence, we
find that he is an eye witness and he has seen the occurrence
and the assault upon the deceased by this appellant. There is
nothing to disbelieve him.
14. P.W.-5 who is the informant, is not an eye witness to
the assault, which is apparent from his examination-in-chief
wherein he stated that on hearing his nephew's (P.W.-7) scream
that his father has killed his mother, he went there. He also
stated that when he went there, he saw his sister i.e. the
deceased lying in a pool of blood.
15. It is pertinent to mention here that if the F.I.R. is
perused properly, one can understand that this P.W.-7, as per the
F.I.R. is an eye witness but from his evidence, it is clear that he
is not the eye witness to the assault. On the point that the dead
body of the deceased was found in the house of this appellant
lying in a pool of blood is substantiated from the evidence of
P.W.-7 who immediately went to the place of occurrence. There is
nothing in the evidence of P.W.-7 to disbelieve him.
16. Thus, from the evidence, it has been established that
it is this appellant who has assaulted the deceased and
committed the murder.
17. Learned counsel representing the appellant tries to
impress this Court by referring to a judgment passed by a
Coordinate Bench of this Court in the case of Chunda Murmu
Vs. The State of Jharkhand (Criminal Appeal (DB) No.839
of 2017), stating that the case of the appellant will fall within
the ambit of Section 304 Part-II of the IPC. Section 304 Part-II
of the IPC provides for punishment for culpable homicide not
amounting to murder and the case will not fall within the
definition of 'murder' rather it will come in Exception 4 of Section
300 of the I.P.C.
18. It is important to quote Section 304 Part-II of the
I.P.C., which reads as hereunder:-
"304. Punishment for culpable homicide not
amounting to murder.--....
....
or with imprisonment of either description for a term
which may extend to ten years, or with fine, or with both,
if the act is done with the knowledge that it is likely to
cause death, but without any intention to cause death, or
to cause such bodily injury as is likely to cause death."
19. We don't agree with the submission of learned
counsel representing the appellant for the reason that Section
300 of the IPC defines murder. Except the exceptions carved out
in Section 300 of the IPC, culpable homicide is murder. If we see
these exceptions, those are 5 in number. Exception-4 of Section
300 of the IPC 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's having taken undue advantage
or acted in a cruel or unusual manner."
20. So, to come within the ambit of Exception 4, the act
has to be without premeditation, in a sudden fight in the heat of
passion on a sudden quarrel AND without the offender having
taken undue advantage or acted in a cruel OR unusual manner.
Applying the aforesaid provision with the facts of this case which
transpired in evidence, though it can be said that there was a
sudden fight in heat of passion, upon sudden quarrel between
the husband and the wife but it cannot be said that the offender
has not acted in a cruel or unusual manner, nor it can be said
that the offender has not taken undue advantage. We come to
the said conclusion because the eye witness P.W.-7 stated that
the appellant has thrashed the deceased on the floor and when
she fell down, he took out the axe which was kept beneath the
cot and thereafter assaulted her on the head. This act of the
appellant unequivocally suggests that he had acted in a cruel
manner and had taken undue advantage of his position as after
being thrashed, the deceased fell on the floor and was at a
disadvantageous position. Thus, the case of this appellant from
the evidence cannot come within the Exception 4 of Section 300
of the IPC, rather within none of exceptions. When none of the
exceptions can be applied on the facts of the case, the act
definitely will be a murder, punishable under Section 302 of the
IPC.
21. We thus, conclude that the appellant has been rightly
convicted under Section 302 IPC and the prosecution has proved
its case beyond all reasonable doubt.
22. Accordingly, this Criminal Appeal is thus, dismissed.
23. The judgment of the Trial Court is hereby affirmed.
24. Let a copy of the judgment along with the Trial Court
Record be transmitted to the Court concerned.
(ANANDA SEN, J.)
(GAUTAM KUMAR CHOUDHARY, J.)
HIGH COURT OF JHARKHAND, RANCHI
Dated:- 05/09/2024
NAFR / Prashant
