Paulus Topno vs The State of Jharkhand

D.N. Patel, J.—The present appeal has been preferred against the judgment and order of conviction and sentence passed by the Sessions Judge, Simdega dated 23rd August, 2002 in Sessions Trial No. 38 of 2000 whereby the appellant-accused has been convicted for an offence punishable u/s 302 of the Indian Penal Code and sentenced for life imprisonment and against this judgment of conviction and order of sentence passed by the Sessions Judge, Simdega, present appeal has been preferred by the appellant-accused.

We have heard the learned amicus curiae appointed by this Court on behalf of the appellant, who has mainly submitted that the Trial Court has not appreciated the omissions, contradictions and improvements in the case by the prosecution witnesses and therefore the judgment of conviction and order of sentence passed by the Sessions Judge, Simdega deserves to be quashed and set aside.

Learned amicus curiae submitted that the alleged eye-witnesses P.W. 1 & P.W. 2 are, in fact, not the eye-witnesses of the incident in question. There are lot of contradictions in their depositions. It is also submitted by the Counsel for the appellant-accused that the weapon used by the appellant-accused as per the allegations of these P.W. 1 and P.W. 2 is an axe, one injury was caused by sharp edged weapon whereas other two injuries have been caused as per these two witnesses by hard and blunt side of the said weapon, whereas, as per the medical evidence all the three injuries have been caused by the sharp cutting side of the weapon. Thus, there are contradictions in the depositions of the witnesses P.W. 1 and P.W. 2 with regard to medical evidence. This aspect of the matter has not been properly appreciated by the Trial Court and hence the judgment and order of conviction and sentence deserves to be quashed and set aside. Moreover, both the witnesses have narrated that the injuries have been caused on head of the deceased, whereas the medical evidence reveals that one injury was on the upper side of the neck whereas two were on the right side of the neck and therefore also there is a contradiction in the ocular evidence and the medical evidence and therefore also the judgment and order of conviction and sentence deserves to be quashed and set aside.

It is also submitted by the Counsel for the appellant-accused that Investigating Officer has not been examined and therefore blood stained earth, scene of offence and Panchnama of recovery of a weapon is also not proved. This aspect of the matter has also not been properly appreciated by the Trial Court and hence the judgment and order of conviction of sentence passed by the Trial Court deserves to be quashed and set aside.

We have heard the learned Additional Public Prosecutor on behalf of the State, who has submitted that the case of the prosecution is based upon the testimony of two eye-witnesses P.W. 1 & P.W. 2. P.W. 3 is the informant, who has filed immediately the F.I.R. Both these eye witnesses have narrated the incident clearly and in detail. Both have stated before the Trial Court that the accused as well as the deceased came at the house of P.W. 1 on a day of festival of Sohrai and thereafter appellant-accused took the deceased into another room which is on the western side of the house of P.W. 1 Accused was having axe in his hand. It has also been narrated by both the eye-witnesses that there were nobody else except these two persons in the western side of the room. Thus, there is no question of mis-identity of the accused whatsoever. The incident has taken place in a broad day light at about 4 p.m. on 4th November, 1998 at village Sakorla. Both the said eye-witnesses have narrated the incident clearly and have stated that this accused had caused injuries on head or on vital part of the body of the deceased by axe. Three injuries have been caused by the present appellant upon the deceased and it has been submitted by the Additional Public Prosecutor that there is enough corroboration of the medical evidence to this effect. Numbers of injuries are exactly tallying with the number of injuries stated by both these eye-witnesses. It is further submitted by the Additional Public Prosecutor that ocular evidence should be given priority to the medical evidence because medical evidence is nothing but an opinion. Medical evidence given by P.W. 13 is not an evidence of an eye-witness. If there is any discrepancy in the ocular evidence and the medical evidence then ocular evidence is to be believed by the Court especially when the weapon used for the incident is tallying with the medical evidence, especially when the number of injuries caused as per ocular evidence is tallying with the medical evidence, especially when the injuries which have been caused on the vital part of the body i.e. head or nearby head (neck) is also corroborated by the medical evidence. Moreover, the dead body was also recovered from the house of P.W. 1 as per prosecution witnesses and more so, weapon was also recovered and was exhibited as Ext 4. Thus, evidence of P.W. 1 and P.W. 2, who were the eye-witnesses, have got enough corroboration by the medical evidence as well as by the depositions of several other prosecution witnesses as well as by inquest Panchnama and therefore it is vehemently submitted by the Additional Public Prosecutor that though there is some discrepancies pointed out by the Counsel for the appellant-accused to the extent that which type of weapon was used for causing two injuries and out of the total 3 may not be given much weightage especially when most of the circumstances stated by the P.W. 1 and P.W. 2 have got corroboration. This ocular evidence is much more accurate evidence in the facts of the present case given by P.W. 1 and P.W. 2 and therefore which type of weapon was used while causing injuries is not of much helpful to the appellant-accused and therefore the order of conviction and sentence passed by the Trial Court is absolutely in consonance with the facts of the case established by the prosecution witnesses and the Trial Court has rightly believed the eye-witnesses P.W. 1 and P.W. 2. No error has been committed by the Trial Court and hence the appeal deserves to be dismissed.

Having heard the Counsel for both the sides and looking to the evidence on the record, it appears that the incident has taken place on 4* November, 1998 at about 4 p.m. P.W. 5 has informed the P.W. 3 about the incident that P.W. 3''s father has been murdered by the appellant-accused and the dead body is lying at the house of Junas Munda (P.W. 1) and therefore P.W. 3 immediately rushed at the house of P.W. 1 and saw the dead body of his father at the house of P.W. 1 and thereafter fard bayan was given by P.W. 3 and F.I.R. was registered on 05.11.1998.

Looking to the deposition of P.W. 1 Junas Munda, who is the eye-witness of the incident, states that because of festival Sohrai several persons had come at his house and all were enjoying the festival by dancing etc. Meanwhile appellant-accused and the deceased also came at the house of P.W. 1 and it has been stated by P.W. 1 that thereafter appellant-accused took away the deceased in another room, situated on the western side of the house and was having an axe in his hand. There are only two rooms at the house of P.W. 1. Both had gone into another room and no third person other than the deceased and the appellant in that room. P.W. 1 saw three injuries caused to deceased by accused by axe and it is stated by the P.W. 1 that all the injuries were caused on head of the deceased and this is how deceased expired on the spot Looking to cross-examination, nothing is come out in cross-examination in favour of the appellant-accused. Looking to the deposition of the P.W. 1, it appears that his evidence is natural and is trustworthy and reliable. He has given deposition in his own words without any exaggeration and without any omission or contradiction. There is no question of mis-identity of the appellant-accused by P.W. 1 because he was invited and he had gone at the resident of P.W. 1 because of festival Sohrai. The incident has taken place on a broad day light at 4.00 p.m. The victim was taken by the appellant on western side room of the house with weapon axe. Injuries were caused by weapon axe which was seen by P.W. 1. Thus, P.W. 1 has stated clearly about the appellant-accused that he was holding the weapon in his hand. He has also seen that the appellant-accused took away the deceased in the western side of the room. There was none else other than these two persons in the western side of the room. He has also seen the appellant-accused causing injuries by axe on head of the deceased and there were three injuries caused by the appellant-accused. Similar is the deposition of P.W. 2, who was also the eye-witness of the incident was also present at the house of P.W. 1. In fact, P.W. 1 and P.W. 2 were the father and son and their presence in the house is natural one and he has stated that there is no question of mis-identity whatsoever. Accused as well as deceased were known to P.W. 1 and P.W. 2. Thus P.W. 1 and P.W. 2 both are natural, reliable and trustworthy witnesses and without any exaggeration, omission and contradiction both have narrated the incident. As per depositions of these two witnesses, it is appellant-accused, who has committed the murder of the deceased by causing injuries by axe.

It further appears from the deposition of P.W. 3, P.W. 5, P.W. 8 and P.W. 9 that the dead body of the deceased was found at the house of P.W. 1 who rushed to the house of P.W. 1. P.W. 3 is informant, who has proved the Fard Bayan before the police. P.W. 5 is maternal uncle (Mama) of P.W. 3, who heard "Hulla" by the appellant himself that he had caused the murder of the deceased. This is how P.W. 5 came to know, about the occurrence. Similarly, the deposition of P.W. 9, who has also heard the "Hulla" made by the appellant himself that he has committed murder of the deceased, who also rushed immediately after the murder had taken place at the house of P.W. 1. Thus, the deposition of P.W. 1 and P.W. 2 is getting enough corroboration by the deposition of P.W. 3, P.W. 5, P.W. 8 and P.W. 9. Similarly, P.W. 4 and P.W. 10 are the Panchnama witnesses of the inquest Panchanama. P.W. 4 has also stated that blood stained weapon was recovered and there is signature of P.W. 4 upon the said Panchanama. The said weapon is given Ext. No. 4. Thus this also corroborates the depositions of the eye-witnesses.

Looking to the deposition given by Dr. N.K. Singh, who is the RW. 13, it appears that when he was serving at Sadar Hospital, Gumla on 06.11.1998 at about 12.15 p.m., he carried out postmortem of Habil Kandulana, who is the deceased and he found the following injuries:

(i) Incised wound 6"x 1"x muscle deep present over left side of upper neck extending from below lower pole of left ear to chin, all major vessels present at the site of injury were also cut.

(ii) Incised wound measuring 2"x 1"x muscle deep present over the right maxillary region.

(iii) Incised wound measuring 3" x 1" x bone deep present over right mandible region.

Thus, three injuries were noticed at the time of postmortem of the deceased by these witnesses. It has also been stated by the P.W. 13 that these injuries were ante-mortem and the death of the deceased has been caused due to haemorrhage and shock by injury No. 1. Looking to injury No. 1, incised 6"x 1"x muscle deep present over left side of upper neck extending from below lower pole of left ear to chin, all major vessels present at the site of injury were also cut.

It is vehemently contended by the Counsel for the appellant-accused that there is discrepancy in the ocular evidence and the medical evidence. It has been staled by P.W. 1 and P.W. 2 that injury No. 1 was caused by sharp cutting side of the weapon whereas rest of the two injuries were caused by hard and blunt side of the said weapon and looking to the medical evidence all the three injuries have been narrated as incised wounds and therefore benefit of this discrepancy ought to have been given to the appellant-accused. This contention is not accepted by the Court mainly for the following reasons;

(a) Looking to the depositions given by P.W. 1 and P.W. 2 who are the eye-witnesses, it appears to us that these two witnesses are natural witnesses. They are trustworthy and reliable witnesses. Looking to their cross-examination also, they have given clear description of whole incident in detail. It has been stated by these two eye-witnesses that on the day of festival Sohrai on 4th November, 1998 appellant-accused as well as deceased Habil Kandulana came at their house and the appellant-accused took away the deceased in western side room of the house of P.W. 1. House of P.W. 1 is having only two rooms and a lobby. Accused as well as deceased were known to P.W. 1, thus there is no question of mis-identity of the appellant-accused whatsoever arises.

(b) It also appears from the evidence of the prosecution witnesses that incident has taken place on a broad day light at about 4.00 p.m. on 4th November, 1998. Appellant-accused was clearly identified by these two eye-witnesses. The incident has taken place in the western side room of house of P.W. 1. Both the eye-witnesses have narrated that the appellant-accused had gone with the deceased with weapon axe and there was none else, other than, these two persons in the western side room of house of P.W. 1.

(c) It has also been stated by these two witnesses that they have seen the appellant-accused causing injuries by axe upon the deceased.

(d) Both these two witnesses, though are rustic witnesses, have given accurate description of the whole incident and they have also stated that how many injuries were caused by the appellant-accused. Both of them have stated that total three injuries were caused by the appellant-accused upon the deceased, which are on the head of the deceased.

(e) Number of injuries are tallying with the medical evidence given by Dr. N.K. Singh, P.W. 13.

(f) Looking to the deposition of P.W. 3, P.W. 5, P.W. 8 and P.W. 9, it appears that the dead body was found from the house of P.W. 1. Thus the deposition given by P.W. 1 and P.W. 2 is getting enough corroboration by the other prosecution witnesses. There is no exaggeration by these prosecution witnesses and there is no reason to disbelieve P.W. 1 and P.W. 2.

(g) Both the P.W. 1 and P.W. 2 have further narrated that the injury No. 1 was caused by sharp cutting side of the weapon used by the appellant-accused. This is also getting corroboration by the medical evidence given by P.W. 13. Injury No. 1 is an Incised wound 6"x 1"x muscle deep present over left side of upper neck extending from below lower pole of left ear to chin, all major vessels present at the site of injury were also cut.

It appears that lot of hue and cry was made by the appellant-accused for the injury Nos. 2 & 3 mainly because these two witnesses P.W. 1 and P.W. 2 have narrated in their depositions that hard and blunt side of the weapon was used by the appellant-accused for causing other two injuries, whereas medical evidence shows that injury Nos. 2 and 3 are the incised wounds. It appears that medical evidence given by P.W. 13 is not the deposition given by the eye-witnesses. Medical evidence is nothing but an opinion as per Section 45 of the Indian Evidence Act, 1872, whereas P.W. 1 and P.W. 2 are the eye-witnesses of the whole incident as stated here-in-above. The whole incident has taken place in the house of P.W. 1. There are only two rooms. Murder has taken place on the western side room of the house. As per clear depositions given by P.W. 1 and P.W. 2, there were none else in the western side room other than the deceased and the appellant-accused. Both of them have seen the appellant-accused going in the room, with axe and thereafter they have seen accused, causing injuries upon the deceased. Number of injuries are exactly tallying with the medical evidence, which are three in number. Even injury No. 1 is also tallying with the medical evidence. Rest of the circumstances are also getting enough corroboration by P.W. 3, P.W. 5, P.W. 8 and P.W. 10.

In these set of circumstances, we are not inclined to give any benefit of this so-called discrepancy to the appellant-accused because ocular evidence shall be given weightage over the medical evidence. The presence of P.W. 1 and P.W. 2 is natural at the house of P.W. 1. Moreover, there is no question of mis-identity of the appellant-accused whatsoever arise. Weapon is also clearly narrated by both these eye-witnesses. There was none else other than the appellant and the deceased in the western side of the room. In these set of circumstances, medical evidence though have narrated injury No. 2 & 3 as incised wound, but, has also narrated that the injury No. 1 was sufficient to cause the death of the deceased and injury No. 1 is also tallying with the depositions of P.W. 1 and P.W. 2 and therefore, we see no reason to disbelieve these two eye-witnesses. When clear ocular evidence is given by natural, reliable and trustworthy eyewitnesses, they will be believed, in comparison with medical evidence. These aspect of the matter has been correctly appreciated by the Trial Court while convicting and sentencing the present appellant-accused. No error has been committed by the Trial Court in convicting the appellant-accused. We, therefore, see no reason to allow this Criminal Appeal, in fact, the judgment and order of conviction passed by the Trial Court is absolutely in consonance with the evidence. The appeal preferred by the appellant-accused is, therefore, dismissed.