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Judgment
Ananda Sen, J
The instant criminal appeal is directed against the conviction of the sole appellant under Sections 302/307/449/450 of the Indian Penal Code vide judgment of conviction dated 27.06.2019 and order of sentence dated 02.07.2019, whereby the sole accused has been convicted for the offence punishable under Section 302 of the Indian Penal Code and awarded imprisonment for life with a fine of Rs.10,000/- for the offence punishable under Section 302 of IPC and in case of default in payment of fine, he has to undergo further simple imprisonment for one year, the appellant further sentenced to undergo R.I. for ten years with fine of Rs.5,000/- for the offence punishable under Section 307 of IPC and in case of default in payment of fine he has to undergo S.I. for six months, the appellant further sentenced to undergo R.I. for life with fine of Rs.10,000/- for offence punishable under Section 449 of IPC and in case of default in payment of fine he has to undergo S.I. for one year and appellant further sentenced to undergo R.I for eight years and fine of Rs.5,000/- for offence punishable under Section 450 of IPC and in case of default in payment of fine he has to undergo S.I. for six months.
Learned counsel for the appellant submits that admittedly from the evidence led by the prosecution, there is no eye witnesses to the said occurrence. Each and every witnesses have categorically stated that no one had seen the commission of murder, that being so conviction of this appellant under Section 302 of IPC is absolutely bad. So far as conviction under Section 307 of IPC is concerned, he submits that the injured witnesses, though stated that they were assaulted by this appellant by an axe, but surprisingly the prosecution has failed to prove the injury as no injury report was exhibited and proved by the prosecution. Doctor who had treated the injured has also not been produced as witness. When there is specific case of the prosecution that the witnesses have sustained injury the same has to be proved and in absence of such proof, the conviction under Section 307 of the IPC cannot be sustained. It is also argued that merely on the basis of the FSL report, the appellant cannot be convicted.
Learned counsel appearing on behalf of State submits that the murder weapon was recovered on the confession of this appellant and thereafter the murder weapon and other apparels were sent to the forensic science expert and as per the report, the blood found in the murder weapon and other apparels was of human origin. On that basis the appellant has been convicted and there is no illegality in it. The Doctor conducting postmortem found several injuries on the person of the deceased. This is a case where four persons have been murdered out of these three of them are wife and two children of this appellant to which the appellant has not given any probable explanation as to how they died. On the basis of the prosecution story the conviction of the appellant is to be sustained.
We have heard, the learned counsel for the parties and we have gone through the records. The fardbeyan is Exhibit-3/1 and the same is at the instance of Kadeya Budh. In the fardbeyan he has stated that on 03.11.2012 at about 07.00 in morning, villager Danial Topno came to his house and said that Illias Gope had murdered his wife- Devki Gope, daughter Kunwari Gope, son- Fote Gope and also neighbour Sushanti Gope, who is the wife of Patras Champia by chopping them with axe. He also assaulted Xavier Champia and Kunwari Dorai by axe. Xavier Champia is the son of Sushanti Champia. He thereafter fled from the place of occurrence. After receiving this information, he reached at the house of Soma Dorai and found that the dead body of Devki Gope, w/o Illias Gope, daughter Kunwari Gope and son Fote Gope. All were in a pool of blood. He also saw the dead body of Sushanti Champia in the house of Patras Champia in pool of blood. He was also informed that Xavier Champia and Kunwari Dorai had also been severely injured by the appellant- Illiash Gope and they fled from the place to save their lives. After watching the scene, informant went to the house of Manki, Sudhir Barjo and informed him about the incident. Due to rain, he could not arrange a vehicle to go to police station. On the next day, i.e. 04.11.2012, he informed to police station and then police party reached there.
On the aforesaid fardbeyan, Sonua P.S. Case No.43 of 2012 was registered under Sections 449/450/324/307/302 of IPC. The police after investigation filed chargesheet under Sections 449/450/324/307/302 of IPC.
As the appellant pleaded not guilty, charge was framed and he was put on trial. Nine witnesses have been examined in this case, who are as follows:-
(i)P.W.-1- Jiwan Honhaga
(ii)P.W.2- Klaiment Bhuiyan
(iii) P.W.-3- Kedeya Budh, informant of this case (iv)P.W.-4- Danial Topno
(v)P.W.-5- Xavier Champia (vi)P.W.-6- Karuna Topno (vii)P.W.-7- Kunwari Dorai
(viii)P.W.-8- Suraj Oraon, Investigating Officer in this case (ix)P.W.-9- Dr. Braj Kishore Pandey.
The following documents and material objects were also exhibited by the prosecution:-
Exhibit-1 Signature of P.W.-1 in seizure list.
Exhibit-1/1 & Exhibit-2/1 Signature of P.W.-3 in seizure list.
Exhibit- 1/2 Seizure list of blooded mud.
Exhibit-2 Signature of P.W.-1 on seizure list.
Exhibit-2/2 Seizure list of blooded mud of another place
Exhibit-3 Signature of P.W.-3 on fardbeyan.
Exhibit-3/1 Fardbeyan
Exhibit-4 F.I.R.
Exhibit-5 Memo of arrest of accused Illias Gope Exhibit-6 Confessional statement of accused Illias Gope Exhibit-7 Seizure list of Axe. Exhibit-8 Seizure list of Blooded cloth.
Exhibit- 9 to Exhibit-9/3 Four postmortem reports.
Exhibit- 10 to Exhibit-10/3 Fourt carbon copy of inquest report of four deceased.
Exhibit-11- S.F.S.L. report.
P.W.-1 has stated that occurrence took place five years ago. He heard, in the village that Illias Gope had murdered his wife, daughter, son and Sushanti Champia, who is the wife of Patras Champia and he also injured the son of Patras Champia, Karuna and Kunwari. In his cross-examination, he stated that he had not seen the occurrence and he had also not seen the act of murder as committed by the accused.
P.W.-2 has stated that occurrence took place six years ago. Illias Gope was quarreling with his wife- Devki Gope on some issues. To save herself Devki Gope along with her children went to Soma Dorai’s house to hide herself but Illias Gope came behind her at the house of Soma Dorai and entered in his house and he chopped his wife, son and daughter by axe. In his cross-examination, he stated that he was not present at the time of occurrence. At the time of occurrence, he was in his house. He had not seen the occurrence.
P.W.-3 is the informant of this case and he stated that occurrence took place on 03.11.2006. He was in his house. Danial Topno came to his house and told that Illias had murdered his wife, daughter, Kunwari Gope, son Fote Gope and Sushanti Champia wife of Patras Champia by chopping from axe. After getting this information, he came to the house of Soma Dorai and found the dead bodies of Devki Gope, Kunwari Gope, Fote Gope and Sushanti Champia. In his cross-examination, this witness has said that he had not seen the occurrence.
P.W.-4 stated that occurrence took place five years ago. He heard sound from the house of Soma Dorai. Illias had killed his wife and two children and one neighbour, Sushanti Champia and he also assaulted in the stomach of wife of Soma Dorai and on the neck of son of Patras. In his cross-examination, this witness had said that he had not seen the occurrence.
P.W.-5 is the injured of this case and he stated that he had slept with his mother in his house. Illias had assaulted him in his right shoulder with axe. Illias had also assaulted Kunwari and Karuna by axe and he also killed his mother- Sushanti Champia. Illias has also killed his own wife and two children. In his cross-examination, he stated that he had not seen the act of killing by Illias. At the time of occurrence, he was sleeping.
P.W.-6 is also the injured of this case and she stated that she was present near the place of occurrence. Illias had killed four persons i.e. his wife, two children and Sushanti Champia. Illias has assaulted her on her leg, head and waist. In his cross-examination, she stated that she had not seen the accused killing his wife and children and Sushanti Champia.
P.W.-7 is also the injured of this case and she has stated that she could not remember when the occurrence had taken place. However, she stated that it was Illias who assaulted Xavier and Karuna and killed his wife and his children. In cross-examination, she stated that she had not seen the killing of the wife of Illias Gope and children and who had killed them she cannot say.
P.W.-8, Suraj Oraon is the Investigating Officer has deposed that on 04.11.2012, he was posted as Officer-in-Charge of Sonua Police Station. On that date, he recorded the fardbeyan of informant- Kadeya Budh, which is marked as Exhibit-3/1. After registering this case, he took charge of investigation himself and recorded restatement of Kadeya Budh and he inspected the place of occurrence. The first place of occurrence is the house of Soma Dorai situated at Village- Jona Tolla and in this house three dead bodies of one female and two children namely, Kunwari Gope and Fute Gope were found by him and he also found dried blood scattered there. Fifty meters from this place, the house of Danial Topno is situated. He also stated that he prepared inquest report of Devki Gope, Kunwari Gope and Fute Gope and also seized blood stained soil therefrom after preparing seizure list, which is marked as Exhibit-1/2. Thereafter he visited the second place of occurrence, which is fifty meters away north from the first place of occurrence at the house of Patras Champia. At this place he found the dead body of Sushanti Champia and blood was scattered there. He also prepared seizure list of blood stained soil, which is marked as Exhibit-2/2 and prepared inquest report of Sushanti Champia. He further stated that he also recorded the confessional statement of Illias Gope, which is marked as Exhibit-6 and on the identification of Illias Gope, he recovered the axe from the Lodhari CRPF camp from the bushes, which is marked as Exhibit-7. He further stated that he also received postmortem report and prepared seizure list. The production-cum-seizure list is marked as Exhibit-8. In his cross-examination, this witness has stated that he recorded the statement of Ransi Burh who is the witness of Exhibit-7. He has recorded the confessional statement of the appellant.
P.W.-9, Dr. Braj Kishore Pandey, he was posted as Medical Officer at Sadar Hospital, Chaibasa and on that day he conducted the postmortem examination of the dead body of all four deceased. On conducting postmortem of Devki Gope he found antemortem injuries:-
“External Injuries:-
Mandible below, right ear was cut and lacerated wound were found 6x6 cm size and a single cut on the nape of neck.
Internal injuries: CVS: all chambers of heart were empty. Chest: Viscera
NAD. Live: NAD. Stomach: Partially digested food. Spleen: NAD. Mode of death: Cardiac respiratory failure.
Time since death: Less than equal to 24 hours.”
On that day at about 10.05 P.M. this witness had conducted postmortem examination of Kunwari Gope and found following antemortem injuries:-
“External Injuries:- Left side of neck of half cut in a circle.
Internal examination: Heart: All chambers were empty. Lungs: NAD.
Abdomen: Liver: NAD. Spleen: NAD. GIT: stomach partially digested food. Mode of death: Cardiac respiratory failure.
Time since death: Less than equal to 24 hours.”
On that day at about 10.00 P.M. this witness had conducted postmortem examination of Sushanti Champia and found following antemortem injuries:-
“External examination:- Punctured wound found of medial side of left scapula.
Internal examination: Heard: All chambers were empty. Lungs: NAD. Abdomen: Liver: NAD. Spleen: NAD. Intestine: NAD. GIP: Stomach partially digested food.”
Cause of death: Hemorrhage and shock, due to sharp cutting edge of object. Mode of death: Cardiac respiratory failure. Time since death: Less and equal to 24 hours.
On the same day at about 09.55 P.M. this witness had conducted postmortem examination of Fote Gope and following antemortem injuries:-
“External Examination: 1. Lacerated wound seen below left mandible whole length of mandible of dead side. 2. Another on left of the neck lacerated and measuring 3 x 3 c.m. size.
Internal examination: Heart: All chambers were empty. Lungs: NAD. Abdomen:
Liver: NAD. Spleen: NAD. GIT: stomach partially digested food.
Cause of death: Hemorrhage and shock, due to sharp cutting edge of the weapon.
Mode of death: Cardiac respiratory failure.
Time since death: within 24 hours.”
All the above four postmortem examination reports have been prepared and signed by him, which is marked as Exhibit-9, Exhibit-9/1, Exhibit-9/2 and Exhibit-9/3.
From the FIR, it is apparent that this appellant has committed murder of his wife, daughter and son. The occurrence had taken place in the house of Soma Dorai. The FIR is the instance of Kedeya Budh, he is P.W.-3. Admittedly, he is not an eye witness to the occurrence, rather he heard the aforesaid fact from Danial Topno. The said Danial Topno informed him that the appellant has murdered his son, daughter and wife and assaulted Xavier Champia and Kunwari Dorai. Danial Topno is P.W.-4. The said Danial Topno stated that he only heard some sound from the house of Soma Dorai, but in cross-examination, he stated that he had not seen the occurrence. In fact, in this case all the witnesses stated before the Court that they had not seen the occurrence. All of them though stated that the murder and assault had taken place that too by this appellant, but stated that they had not seen the occurrence.
The dead body was found in the house of Soma Dorai. Soma Dorai was also not examined as prosecution witness. As per the FIR, Xavier Champia and Kunwari Dorai was assaulted by this appellant by axe. Xavier Champia was examined as P.W.-5 and Kunwari Dorai as P.W.-7. P.W.-5 stated that this appellant has assaulted him in the right shoulder with the axe, but surprisingly, he stated that so far as the assault on the deceased is concerned, he has not seen it as he was sleeping. Similarly, P.W.-7 also stated that she was assaulted by this appellant, but she has not seen the assault on the deceased.
From analysis of the evidence, we find that none of the witnesses have stated that they have seen the appellant, murdering the deceased i.e. wife, son and daughter, but the injured witness, P.W.-5 and P.W.-7 stated that this appellant had assaulted them with an axe and injured them. It is only the oral evidence, which is available on the point of assault and injury upon P.W.-6 and P.W.-7. Though a Doctor has been examined in this case, but said Doctor, P.W-9 is the person, who had only conducted the post-mortem of the four dead bodies. The Doctor, who has treated the injured has not been examined. Even the medical report or any injury report or document in respect of their treatment has also not been exhibited or produced during trial. In absence of corroborative evidence to suggest that P.W.-5 and P.W.-7 sustained injury due to the assault by this appellant with an axe, it is not possible for this Court to come to a definite conclusion as to whether actually P.W.-5 and P.W.-7 sustained any injury or not. The prosecution should have produced corroborative evidence to suggest that P.W.-5 and P.W.-7 sustained injury in the hands of this appellant by a sharp cutting weapon.
So far as, the conviction under Section 302 of IPC is concerned, we find that though the dead body was found in the house of one Soma Dorai, the said Soma Dorai has not been produced as a witness. None of the witnesses have stated that they had seen the occurrence. It is a very unfortunate that murder of four persons have taken place, three of them being the immediate family members of this appellant, but none of the villagers have come forward to state that they have seen this appellant committing murder of four persons. Only on the basis of SFSL report to the effect that human blood was found in the murder weapon and in the apparels of the deceased and on the earth, the appellant cannot be convicted. Thus, having no other alternative, in absence of any corroborative evidence, we are inclined to allow this criminal appeal by setting aside the judgment of conviction dated 27.06.2019 and order of sentence dated 02.07.2019 passed by learned Additional Sessions Judge-III, West Singhbhum at Chaibasa in Session Trial Case No.20 of 2014.
Accordingly, the instant Criminal Appeal is allowed.
Pending Interlocutory Application(s), if any, stands disposed of.
This Court directs the above named appellant to be released forthwith from custody, if not required in any other case.
Let T.C.R. along with a copy of this judgment be sent to the concerned trial court forthwith.