Criminal Appeal (D.B.) No. 46 of 2017
[Arising out of judgment of conviction dated and order of sentence both dated
25.11.2016 passed by learned Principal Sessions Judge, Pakur in Sessions
Case No. 115/14]
1. Shivdhan Tudu son of Late Ragda Tudu
2. Babudhan Tudu son of Late Ragda Tudu
Both residents of Village & Mauza Bagrapara, P.O. & P.S. Pakuria, Town
and District Pakur Jharkhand .... .... Appellants
….
--Versus--
The State of Jharkhand Respondent
…. …. ….
For the Appellants : Mr. Mahesh Tewari, Advocate
For the State : Mr. Abhay Kumar Tiwari, A.P.P.
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PRESENT: SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
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JUDGMENT
RESERVED ON: 25.09.2024 PRONOUNCED ON: 30.09.2024
.
Per Gautam Kumar Choudhary, J Appellants are before this Court in appeal against the
judgment of conviction and sentence under Section 302/34 of the IPC.
2. Informant is the husband of the deceased and as per the FIR, the appellants
struck his wife with stone over her face, when she was going to dispose of cow
dung. Getting this information when the informant rushed to the place of
occurrence, he found her lying on the PCC road and the appellants were
assaulting her with stone. On his approach, both of them fled away. Genesis of
offence has been stated to be land dispute.
3. On the basis of fardbeyan, Pakuria P.S. Case No.41/14 was registered
under Sections 302/34 of the IPC against the appellants. Police on investigation
found the case true and submitted charge sheet and the appellants were put on
trial for the offence under Sections 302/34 of the IPC.
4. Altogether 6 witnesses have been examined on behalf of the prosecution
and relevant documents including Postmortem Examination Report has been
adduced into evidence and marked as exhibit.
5. It is argued by the learned counsel on behalf of the appellants that there are
vital contradictions in the testimony of witnesses. As per the FIR informant was
the sole eye witness whereas in evidence, P.W. 2 and P.W. 4 have claimed
themselves to be eye witnesses. P.W. 4 has gone further and deposed that after the
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assault, appellants robbed the jewelleries of the deceased. These contradictions
have been proved by the IO (PW 5).
6. Learned Counsel on behalf of the State has defended the Judgment of
conviction and sentence. It is argued that informant (PW-1) has consistently
stated in the FIR as well as in his testimony that he had seen the occurrence.
7. Autopsy Surgeon noted the following ante mortem injuries on the dead
body:
Left angle of lips-torn
Laceration size-1/2" x1/2" x1/2"x 1/2", Lacerated injury over left forehead-size
1"x1/2" x bone deep. Laceration over left lateral canthus of eye-size 1"x1"x1/2"-
Incised wound over left side of head, anterior to left temporal bone of size 2"
diameter. Swelling over occi
pital region of size 3” diameter. On internal
examination frontal bone was found to be fractured.
As per the autopsy surgeon (P.W. 6) cause of death was due to head injury.
8. From the above extensive injuries, it is difficult to be persuaded by the
defence plea that these injuries were caused by fall on the road. Injuries are
multiple over face and head and in normal circumstances, it cannot be caused by
a simple fall on the road. These injuries are possible in a road traffic accident, but
no such plea has been taken in defence during trial. What can be safely concluded
is that death was homicidal in nature and not accidental.
9. Coming to the author of crime, at the outset, a testimony of a witness,
cannot be rejected only on the ground that his name does not figure in the FIR.
Statements made in a FIR can be used to confront the informant to elicit
contradiction, but it does not bind the other witnesses.
10. In the present case, there are strong reasons to discard the testimony of
P.W. 4 as direct eye witness to the incidence. She has deposed that the appellants
after the assault had taken away gold jewelleries like earring and neckless. She
has also alleged that they had committed theft of jewelleries and cash from her
house. These do not at all find mention either in the FIR or in her earlier
statement under Section 161 of the Cr.P.C. Her attention was drawn in cross
examination at para 4. Further, no charge sheet has been submitted for
committing theft under Section 379 of the IPC.
11. P.W. 1 who is the informant of the case has specifically stated that
incidence took place at 9 O’clock in morning and on hulla, when they reached
there, he saw the appellants assaulting his wife with stone. The injuries were both
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on face as well as on front and back side of her head. Both the appellants fled
away after the incidence. This part of his testimony is corroborated by the FIR
under Section 157 of the Evidence Act. Once the testimony of the informant is
corroborated by the FIR, it hardly matters if there is any contradiction between
his deposition and the unsigned re-statement given to the police. His testimony is
further corroborated by P.W. 2, who is also a resident of the same village and the
sister of the deceased. It has been disposed that both of them smothered the face
of the deceased with stone and she saw the incidence while returning from the
field. The Investigating Officer (P.W. 5) has deposed in para 10 that the house of
this witness was situated near the house of the deceased. He has deposed that he
was stating on the basis of his own information and has not mentioned it in the
case diary. It has also been deposed by the I.O. that appellant absconded
immediately after the incidence. Cumulative reading of the testimony of these
witnesses gives credence to the informant’s evidence that it was the appellants
who have committed the offence. Both the appellants in a pre-planned manner
had intercepted the deceased and brutally assaulted her with stone resulting in her
instantaneous death.
12. In view of the direct eye witness account duly corroborated by the medical
evidence, I do not find any infirmity in the judgment of conviction and sentence
passed by the learned court below for the offence under Section 302 of the IPC
which is accordingly, affirmed.
Criminal Appeal stands dismissed.
Pending Interlocutory Application, if any, is disposed of.
Let the Trial Court Records be transmitted to the Court concerned along
with a copy of this judgment.
(Gautam Kumar Choudhary, J.)
Ananda Sen, J. I agree.
(Ananda Sen, J.)
High Court of Jharkhand, Ranchi
th
Dated, 30 September, 2024
AFR/Anit
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