SHANKAR TIRIYA vs STATE OF JHARKHAND

Ratnaker Bhengra,J

The present appeal is directed against the judgment of conviction dated 18.03.2008 and the order of sentence dated 19.03.2008 passed by the

learned Sessions Judge, West Singhbhum, Chaibasa, in Sessions Trial No. 156 of 2007, whereby the appellant was convicted for the offence under

section 302 of the India Penal Code and was sentenced to undergo R.I. for life and a fine of Rs. 15000/-.

The prosecution case is that the informant Tura Tiriya P.W. 7 gave his fardbeyan which was recorded by Officer-in-Charge of Jagannathpur

Police Station wherein he stated therein that his father Rolang Tiriya, aged about 45 years, was a daily wage earner and his uncle Shankar Tiriya was

also working as a labourer. Since the last two months his uncle Shankar Tiriya was mentally disturbed and he was voicing about killing and assaulting.

On 17.03.2007, in the morning his father was sleeping and he was sitting outside the house on a cot. At that time his uncle Shankar Tiriya came there

with a 'basula' and assaulted his father on the neck. He and his aunty Suryamani P.W. 6 tried preventing him, but repeated blow was given by

Shankar Tiriya on the neck of his father, his father died. Thereafter his uncle fled away towards forest.

On the basis of the fardbeyan a case under section 302 of the Indian Penal Code was registered vide Jagannathpur P.S. Case No. 07 of 2007

corresponding to G.R. Case No. 146 of 2007. After investigation police submitted charge sheet. Learned Chief Judicial Magistrate took cognizance

against the accused and this case was committed to the court of sessions. After commitment charge against the accused was framed under section

302 I.P.C. Trial was held and he was convicted and sentenced as aforesaid, hence this appeal.

On behalf of prosecution, eight witnesses were examined to prove the case, P.W. 1 is Budhram Laguri , P.W. 2 is Chandra Mohan Tiriya, P.W. 3

is Jena Diggi, P.W. 4 is Chando Diggi, P.W. 5 is Dr. Sudama Prasad, P.W. 6 is Suryamuni Tiriya, P.W. 7 is Tura Tiriya, he is informant of the case

and P.W. 8 is Madhusudan Dey, he is investigating officer.

P.W. 7, is Tura Tiriya, he is the informant in this case. He deposed that his father Rolang Tiriya was murdered. He was murdered on 17.03.2007,

Saturday at 9 O'clock. He was murdered by his uncle Shankar Tiriya with a Basula. His father was sleeping and at that time he came and cut his

neck with the Basula. His uncle had brought the basula from his maternal uncle's house. His father had no enmity with any one. When he was

murdered at that time he was at his in-law's place.

The informant further deposed that information regarding the incident was given by the village Munda to the police station. The officer-in-charge of

the Jagannathpur police station had come to the village. The police had taken his statement and had read it aloud to him which he heard and finding it

correct had signed on it. He recognized his signature on the fardbeyan. The village Munda Budhram Laguri and Chandra Mohan Tiriya had also

witnessed the fardbeyan and put their signatures on it. In paragraph no. 4 of the cross examination, he deposed that at the time of incident, he was at

his in-law's place and he had not seen Shankar Tiriya bringing the basula. The incident had taken place at 9'clock and he had come home at 10

O'Clock by which time Shankar Tiriya had run away. He further deposed that he had told the police that for the last two months, his uncle Shankar

Tiriya was mentally deranged and that for the last 2 to 4 days he was more disturbed. Further he deposed that his uncle Shankar Tiriya was not mad

rather he was cleverly mad.

P.W. 6 is Suryamuni Tiriya. She is the wife of Shankar Tiriya ( appellant). She deposed that Rolang Tiriya was her Bhaisur ( husband's elder

brother) and he was murdered. His murder was committed by Shankar Tiriya. His murder was done with a basula.

There was a wound in the neck. In para 2, she deposed that Shankar Tiriya is her husband. In cross examination, she deposed that Shankar Tiriya

was like a mad person and when the murder was committed at that time he was mad.

P.W. 1 is Budhram Laguri. He is the village Munda. He deposed that the occurrence is of 17.03.2007. He said that the village persons had

informed him that Shankar Tiriya had killed his brother Rolong Tiriya. He went to the place of occurrence and saw that the deceased had blood all

over his bodyand then he informed at the police station. The police had come and arrested Shankar Tiriya and taken the body of Rolang Tiriya for

postmortem. The police had taken the statement of Tura Tiriya in his presence. They wrote the statement and read it aloud and on finding it correct

Tura Tiriya had signed on it. He further deposed that he had also signed on it and also Chandra Mohan Tiriya. This witness has recognized his

signature on the fardbeyan which is marked as Ext.-1

P.W. 1 further deposed that the police had seized the basula and made a seizure list on which he had signed. This witness has proved his signature

on the seizure list of 'basula' which has been marked as Ext.-1/1. The police had also seized the blood stained TShirt, towel, the blood stained bed and

made the seizure list on which he had signed. He proved his signature on this seizure list which has been marked as Ext.-1/2. He further deposed that

he had put signature on the confessional statement which was marked as Ext.-1/3. This witness proved his signature on the inquest report which was

marked as Ext.-1/4. In the cross examination, this witness has deposed that he did not see the assault with his own eyes and that he was informed

about the incident by Tura Tiriya at the house of this witness. He has further said that he did not know that Shankar Tiriya was mentally deranged. He

further said that the seized articles have not been produced in court. Finally, in paragraph no. 12, he deposed it is not so that the basula, the blood

stained T-Shirt and towel was not seized in his presence.

P.W. 2 is Chandra Mohan Tiriya, who is co-villagers. He deposed that he received information about the occurrence on 17.03.2007 after returning

from days work. The police had come to the village and he had taken police to the village Munda's residence.

He further deposed that he had signed on the statement of Tura Tiriya, he recognized and proved his signature on it which was marked as Ext.-1/5.

This witness has further signed on the seizure list of the blood stained bed, towel etc and proved his signature which was marked as Ext.-1/6. This

witness also proved his signature on the seizure list of the Basula which was marked as Ext.-1/7. He has also proved his signature on the confessional

statement of Shankar Tiriya which was marked as Ext.-1/8. This witness has also made his signature on the inquest report which was marked as Ext.-

1/9. In his cross examination, he said that when he returned from work, the body was not there. He had gone to the police station with the village

Munda and reached the police station at 7.30 p.m. There he had signed on the seizure list at 11 O'Clock at night. He further deposed that he did not

know what was written on the paper. All the signatures were done at 11 P.M. in the police station. In paragraph no. 9 of the cross examination, he

further deposed that nothing was seized in front of him that even Shankar Tiriya's statement was not taken in front of him.

P.W. 4 is Chando Diggi, she is the wife of the deceased, she is not an eye witness. She deposed that she was informed about the incident by one

Jena Diggi, She has simply deposed that her husband was killed by Shankar Tiriya , and that her sister-in-law (Gotni) was then at home and that the

murder was committed with a basula.

P.W. 5 is Dr. Sudama Prasad. He deposed that he conducted the postmortem examination on the dead body of deceased. Regarding the external

finding and internal finding, he reported as under :

 External Finding:-

 (i)Semi digested material discharged from nostril blood and blood clot present over his face and clothes.

 (ii) Incised wound over the back on the neck towel in left side with cutting muscles and soft tissues Size 4â€​x3â€​x3â€​

 Internal findings:- Head empty. Thorax heart left empty right full. Lungs liver spleen empty. Stomach-semi digested food particles present. Other

viscera NAD.

 The cause of death , in his opinion, was haemorrhage and shock due to sharp cutting object with excessive blood discharge. Time since death in

between 36 hours. Weapon used may be Basula. The postmortem report was prepared by him and bears his signature which was marked as Ext.-2.

He saw the inquest report before postmortem examination.

P.W. 8 is Madhusudan Dey. He is the Investigating Officer. He recorded the fardbeyan of the informantTura Tiriya, son of Late Rolang Tiriya.

The fardbeyan was read out and it was found correct by the Tura Tiriya and in front of independent witnesses, he put his signature on the fardbeyan.

The village Munda Budhram Laguri and Chandra Mohan Tiriya , both these witnesses also put their signatures on the fardbeyan. This witness proved

his handwriting and signature on the fardbeyan which was marked as Ext.-3. During the course of investigation, he investigated the place of

occurrence.

He described the place of occurrence in para 4 and deposed that the deceased was on his bed on the floor in the outer room. The neck of the

deceased was half cut and blood had fallen to the bed and floor. There was blood spread on the eastern wall. He prepared the inquest report and he

proved his handwriting and signature on the inquest report and which was marked as Ext.-4. In para 6, he deposed that he arrested the accused

Shankar Tiriya and further seized the blood stained clothes from the body which included one red T-shirt, one check printed towel which was marked

as Ext.-5. He recorded the confessional statement of the accused and according to the confession of the accused, he recovered one basula made of

iron on which there was blood stain on its edge as well as on the handle. The seizure of it was made in presence of witness Budhram Laguri and

Chandra Mohan Tiriya and on the seizure list these witnesses also put their signatures. A copy of the seizure list was given to the accused Shankar

Tiriya. This seizure list was marked as Ext.-5/1. In paragraph no. 8 of his deposition, he said that the confessional statement was recorded before the

witnesses Budhram Laguri and Chandra Mohan Tiriya and he recognized the confessional statement which bears the signatures of both the witnesses

and the thumb imprint of the accused. This witness proved his handwriting on the confessional statement and his signature on it which was marked as

Ext.-6. He further sent the dead body for postmortem to the Sadar Hospital, Chaibasa. He also proved the formal FIR, which is in his handwriting and

his signature which was marked as Ext.-7. This witness further deposed that he obtained the postmortem report and he sent all the material, exhibits

after getting the orders from the court to the Forensic Science Laboratory, Ranchi. He proved the carbon copy of the forwarding report which is in his

handwriting and contains his signature and which was marked as Ext.-8. In his cross examination, in para 17, he deposed that the seized articles were

not in court. He further deposed that the report of Forensic Science Laboratory was not mentioned in case diary.

Learned counsel for the appellant Mr. R.P. Gupta has submitted that there is no eye witness to the incident and the allegations are only based on

suspicion. The FIR is based on manufactured allegations. First of all he argued that P.W. 7 Tura Tiriya son of the deceased, who claims to be the

informant and eye witness was himself not present on the alleged scene of crime. Counsel has submitted that P.W.7 has in his deposition stated that

he was not there at the time of his father's murder, but at his in-laws place elsewhere. Counsel hence said that if the informant himself is evidently

saying regarding his presence in the village in the fardbeyan, then the fardbeyan is not to be believed. Counsel then submitted that informant has

admitted that he only came to know about the incident from his mother. Therefore, he could not have seen his uncle Shankar Tiriya, assaulting his

father repeatedly on the neck with a basula. In para 4 of his cross examination, he has admitted that he had not seen his uncle bringing the basula. The

allegation is only on suspicion because for sometime prior to the incident Shankar Tiriya was voicing about killing and assaulting.

Referring to the evidence of P.W. 6, Suryamani Tiriya, who is the wife of the deceased, appellants counsel has argued that no where in her

deposition she has mentioned that she saw the actual killing or murder take place. Therefore she is not an eye witness. The claim by the informant

P.W. 7 that both he and this witness had seen the occurrence, and they had tried to restrain the accused from committing the assault is itself falsified

from their deposition.

Learned counsel for the appellant has then submitted that P.W. 1 Budhram Laguri , who is the Munda of the village, is a most unreliable and

untrustworthy witness. Counsel, however, submits that he is not an eye witness. Counsel further says that as per this witness, the seized items were

not produced in court. Appellants counsel hence says that this witness as well as the other seizure list witnesses, cannot be relied upon. Counsel has

then referred to the evidence of P.W. 2, Chandramohan Tiriya and said this witness has not supported the prosecution case and is likewise unreliable.

In Para 8 and 9 of his cross examination he said that he signed on the seizure list paper in the police station at 11.00 p.m.in night and that nothing was

seized in his presence.

Referring to the evidence of P.W. 5, or Dr. Sudama Prasad, learned counsel has asserted that in the fardbeyan it has been stated that the

appellant inflicted repeated assault with the basula, however, in the evidence of the doctor there is reference to only one wound on the back of the

neck. Therefore ocular evidence and medical evidence do not tally and cannot be relied upon.

Learned counsel for the appellant has finally pointed to the evidence of the Investigating Officer P.W. 8 Madhusudan Dey and submitted that he is

totally unreliable. Learned counsel submitted that he is not to be believed since he misused his power and authority to create fake seizure lists. When

P.W. 2 had said that no seizure item was seized in his presence, not even the basula or the weapon of assault, then how can it be concluded that on

the confession of the accused the basula was seized, and how can such confession be relied upon. The basula was not produced in court any way.

Learned counsel for the State, learned APP Mr. Sanjay Kumar Srivastava, on the other hand, argued that the main evidence in the case to be

considered is of P.W. 6, Suryamani Tiriya, the wife of the appellant and the sister in law of the deceased. She had made the categorical statement that

“ his murder was committed by Shankar Tiriyaâ€. Since, she is the wife of the appellant, this statement, has to be taken seriously, and cannot be

just brushed aside. In many or most of such circumstances, the natural reaction will be to try and save one's spouse. In this case, nothing has come in

the evidence to suggest, why she would make such a submission, which would lead to the conclusion of guilt and conviction, she does so because this

witness is simply telling the truth. Other witnesses, such as, P.W. 3 and P.W. 4 though hearsay, have also supported this, and counsel has pointed out

the evidence of P.W. 4, Chando Diggi, who is the wife of the deceased. This witness has said that at he time of the incident, her sister in law, (

Suryamani) was at home and that murder was done by basula.

Learned counsel for the State, then submits that the doctor's evidence reveals that the assault was made may be by basula, and that the wound

was incised and on the neck. This is in support of the fard beyan and the evidence of P.W. 6 and P.W.7. In conclusion, he says that the fact of death

cannot be denied, and the wound on the neck is consistent with the allegation of assaulting on the neck with basula, and the allegation has been

supported particularly by the person who had every reason to disagree, that is his wife herself, so the allegations are sustainable.

F I N D I N G S

It is seen that the informant Tura Tiriya, P.W. 7 has corroborated his fardbeyan on the question of asault by the appellant on the deceased with a

basula on the neck of the deceased in his house. More importantly, P.W. 7 has stated in his fardbeyan that Suryamuni Kui, P.W. 6 who is the wife of

the appellant along with him ( P.W. 7) tried to prevent appellant from assaulting the deceased and the wife of the appellant has herself categorically

stated in her deposition that her husband had killed the deceased by assaulting him on the neck. This deposition of the wife of the appellant cannot be

so easily discarded. Why will the wife accuse her husband unless, it is true. No reason such as strained relationship between the husband and wife has

been mentioned or attributed, and one is compelled to agree that she is telling the truth.

Regarding the seizure list witness, one of them Chandra Mohan Laguri had denied the seizure list. However, the other seizure list witnesses

Budhram P.W. 1, who is the village Munda, holding a responsible post can be relied upon. He has deposed that he went to the place of occurrence

and saw the body of the deceased. Seizures of the weapon of assault, the basula, blood stained T-shirt, towel and blood stained bed was made in his

presence and he signed on the seizure lists and in his deposition he has affirmed and not denied the same.

The Investigating Officer Madhusudan Dey, P.W. 8 had reached the place of occurrence and recorded the fardbeyan of the informant Tura

Tiriya, P.W. 7 and also of the village Munda, Budhram Laguri P.W. 1 and Chandra Mohan Tiriya P.W. 2 and both put their signatures on the

fardbeyan marked as Ext.1 and Ext. 1/5 respectively. He inspected the place of occurrence and he prepared the inquest report. He seized the blood

stained red T-shirt, one check printed towel and took blood samples from the place of occurrence and made seizure list of it which was marked as

Ext. 5. He recovered the weapon of assault, the basula on which there was blood stains and made seizure list of it and which was marked as Ext. 5/1.

The evidence of particularly P.W. 6 Suryamuni Tiriya who is the wife of the appellant, who has absolutely no reason to speak against her husband

who has in fact in very clear cut terms stated that her husband had killed the deceased, cannot be thrown away. There seems some inconsistencies or

contradictions in the evidence of P.W. 7. However, on the point of assault being made on the neck and with the basula, which is a sharp edged

weapon, he is consistent and the medical evidence also corroborates him. The I.O. also visited the place of occurrence and seen the body of the

deceased at the place of occurrence and taken the statement of witnesses.

Therefore, basing on the aforesaid reasonings and having gone through the arguments of both counsels and having gone through the records of the

case and in the facts and circumstances of the case we uphold the conviction of the appellant. Accordingly, the conviction of the appellant under

section 302 of the IPC dated 18.03.2008 and order of sentence dated 19.03.2008 to undergo R.I. for life with a fine of Rs. 15,000/- passed by the

learned Sessions Judge, West Singhbhum, Chaibasa in Sessions Trial No. 156 of 2007 requires no interference and are upheld.

Accordingly, this appeal is dismissed.