Gendha Topno And Ors vs State Of Jharkhand

Shree Chandrashekhar,J

The appellants, namely, Gendha Topno and Hardugan Topno have faced the trial on the charges under sections 324/34, 307/34 and 302/34 of the

Indian Penal Code. They have been convicted and sentenced to R.I. for life and fine of Rs. 10,000/- each for the offence under section 302/34 of the

Indian Penal Code, S.I. for one month each for the offence under section 341 of the Indian Penal Code and three years’ imprisonment each for

the offence under section 324/34 of the Indian Penal Code.

The charge under section 307 of the Indian Penal Code framed against the appellants has failed.

Rahil Topno is the informant in this case. She is the wife of Enam Topno, the deceased. She has stated that in the night of 28.12.2006 her cousin

brother-in-law Gendha Topno came to her house and started abusing her husband. At that time, his son Hardugan Topno was also with him. When her

husband objected, Gendha Topno armed with tangi and Hardugan Topno who was carrying Bahangi started assaulting her husband. Gendha Topno

assaulted her husband with tangi on his head and Hardugan Topno gave a Bahangi blow to him. When Polous Topno, her brother-in-law, and

Mansukh Topno, her uncle-in-law, tried to save her husband, the appellants have assaulted them also. On the basis of her fard-beyan which was

recorded on 29.12.2006 at 6:30 a.m., Torpa P.S. Case No. 61 of 2006 was registered against the appellants.

During the trial the prosecution has examined seven witnesses; the informant is PW-4.

The prosecution has projected Polous Topno-PW-2, Mansukh Topno-PW-3 and Rahil Topno-PW-4 as eye-witnesses.

In the Court, the informant has narrated a similar story about the occurrence which has happened in the night of 28.12.2006. Her brother-in-law and

uncle-in-law have also supported her. They have also stated about the appellants coming to their house in the night at about 9:00 p.m. and assaulting

Enam Topno with tangi and bahangi. In respect of injuries caused to PW-2 and PW-3 though the prosecution has not produced their injury reports and

the doctor who has examined them has not been examined during the trial, their evidence on assault by the appellants upon them is consistent. The

informant has also stated that the appellants have assaulted her brother-in-law and uncle-in-law with tangi.

On such evidence, presence of the appellants at the place of occurrence and at the time of occurrence has been proved by the prosecution.

Dr. C.S.Prasad-PW-7 who has conducted the post-mortem on 30.12.2006 has found the following injuries on Enam Topno:

“A. Stitched Wound:

(i) 4 cm x ½ cm on left side of forehead with three stitches.

(ii) 5 cm x 1/1 cm on the left perito temporal region of head with six stitches.

B. Abrasion: 10 cm x ¼ cm on the back of right side of chest upper part.

C. Internal: There was defuse contusion of left perito frontal and occipital.â€​

According to the doctor, the injuries to Enam Topno were caused by hard and blunt substance, may be, back portion of tangi and the time elapsed

since death was between 6 hrs. to 24 hrs. from the post-mortem.

The medical evidence thus corroborates the ocular evidence on cause of death.

Now, the question is whether the appellants have rightly been convicted under section 302/34 of the Indian Penal Code.

Section 300 of the Indian Penal Code provides that culpable homicide is murder if act of an accused falls under any one of the four clauses under

section 300. Assault by the appellants with the back portion of tangi and bahangi, which is a hard and blunt substance, reflects their intention that they

did not intend to cause death of Enam Topno. It was a sudden fight which has ensued upon a quarrel between the appellants and the deceased and in

the heat of passion the appellants have assaulted Rahil Topno. Explanation to Exception-4 of Section 300 of the Indian Penal Code provides that it is

immaterial which party has offered provocation or made the first assault. Therefore, in view of the Explanation to Exception-4 the fact that the

appellants had gone to the house of the informant and Gendha Topno was abusing Enam Topno meaning thereby that the appellants have started the

quarrel, would not exclude application of Exception-4 to Section 300 of the Indian Penal Code. Another important aspect of the matter is that the

doctor has not rendered a definite opinion on the cause of death except saying that death has been caused due to head injuries. He has found two

stitched wounds, however, the prosecution has not revealed what treatment was given to Enam Topno when he was admitted in the hospital and the

doctor who has treated him has not been produced during the trial. He has succumbed to the injuries one date after he was assaulted by the

appellants.

The aforesaid facts constitute the essential ingredients to bring the case of the appellants under Exception-4.

In “Surinder Kumar Vs. Union Territory, Chandigarh†(1989) 2 SCC 217, the Supreme Court has indicated the situations under which an

accused may be extended benefit of Exception-4 to section 300 IPC, thus;

“To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the

act was done in a heat of passion; and (iv) the assailant has not taken any undue advantage or acted in a cruel manner. The cause of the

quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the

occurrence is not a decisive factor but what is important is that the occurrence must have acted in a fit of anger. Of course, the offender

must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment

picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception

provided he has not acted cruelly.............................â€​

From the prosecution’s evidence all that which can be gathered is that the appellant, namely, Gendha Topno had requisite intention as

envisaged under Part-1 of Section 304 of the Indian Penal Code, however, the appellant, namely, Hardugan Topno, who was carrying bahangi, can be

imputed knowledge that his act was likely to cause death but he had no intention to cause death. Therefore, the appellant no.1, namely, Gendha Topno

is liable to be convicted under section 304 Part-I of the Indian Penal Code and the appellant no.2, namely, Hardugan Topno is liable to be convicted

under section 304 Part II of the Indian Penal Code.

In the above facts, we hold that the prosecution has failed to establish the charge under section 302/34 of the Indian Penal Code against the

appellants and, accordingly, their conviction for the said offence is set-aside.

Accordingly, the judgment of conviction under sections 302/34, 341 and 324/34 of the Indian Penal Code dated 22nd August, 2012 and the order of

sentence of R.I. for life and fine of Rs. 10,000/- each for the offence under section 302/34 of the Indian Penal Code, S.I. for one month each for the

offence under section 341 of the Indian Penal Code and three years’ imprisonment each for the offence under section 324/34 of the Indian Penal

Code, all dated 23rd August, 2012 passed against both the appellants, namely, Gendha Topno and Hardugan Topno by the learned Judicial

Commissioner-II, Khunti in Sessions Trial no. 336 of 2007 are set-aside.

The appellant, namely, Gendha Topno who is liable to be convicted under section 304 part I of the Indian Penal Code is sentenced to R.I. for ten

years and the appellant, namely, Hardugan Topno who is liable to be convicted under section 304 part II of the Indian Penal Code is sentenced to R.I.

for seven years.

Ms. Nehala Sharmin, the learned APP states that the appellant, namely, Gendha Topno has remained in custody for more than 11 years and the

appellant, namely, Hardugan Topno has remained in custody for more than 7 years.

Accordingly, the appellants above-named shall be set free forthwith, if not wanted in connection with any other case.

In the result, Criminal Appeal (D.B.) No.983 of 2012 is partly allowed.

Let lower court records be transmitted to the court concerned, forthwith.

Let this order be communicated to the court concerned through FAX.