Jharkhand High Court
Raimon Lakra vs State Of Jharkhand on 28 October, 2015
Equivalent citations: 2016 (4) AJR 201, (2015) 4 JLJR 644
Author: R.R.Prasad
Bench: R.R.Prasad, Pramath Patnaik
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Criminal Appeal (D.B) No.104 of 2013
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Against the judgment of conviction dated 8.6.2004 and order of sentence
dated 9.6.2004 passed by the Additional Sessions Judge,FTC No.1, Gumla in
S.T.No.167 of 2003.
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Raimon Lakra son of Ful Jems Lakra,
resident of village-Tangartola, P.S.Raidih,
District-Gumla.......................................................Appellant
VERSUS
State of Jharkhand..............................................Respondent
For the Appellant:M/s.Manoj Tandan & Shiv Shankar Kumar, Advocate
For the State : Mr. Sanjay Kumar Srivastava, A.P.P
P R E S E N T
THE HON'BLE MR. JUSTICE R.R.PRASAD
THE HON'BLE MR. JUSTICE PRAMATH PATNAIK
By Court: The appellant was put on trial on the accusation of committing
murder of his wife Balbanti. The trial court having found the appellant guilty for the charge convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code, vide its judgment dated 8.6.2004 and sentenced him to undergo imprisonment for life, vide its order dated 9.6.2004.
The case of the prosecution as has been projected in the Fardbeyan (Ext.5) of the informant Ignesia Xaxa (P.W.3) is that on 18.2.2003 while she was in her house, she heard Balbanti (deceased) calling upon her to help her out as she is being assaulted by her husband. On hearing this, she by raising alarm rushed to the house of the appellant where she found the door of the house of the appellant closed. When they requested the appellant to open the door, the appellant told them to go away. Thereupon the informant and other villagers broke open the door and entered into the room where they found the appellant having Tangi with him but he threw on the corner of the room. They also did find Balbanti, on whose person number of injuries were there, died. The villagers tied down the appellant so that he may not flee from there. The appellant disclosed to them that he has 2 killed his wife as his wife was intending to kill him by applying black magic.
On the next day, i.e. 19.2.2003, Shivnath Prasad (P.W.8) the then Officer-in-Charge of Raidih Police Station received information at about 8.15 a.m. that one woman has been killed by her husband in village Kasir Tangar Toli. Such information was entered into a Station Diary and the Officer-in-Charge, Shivnath Prasad proceeded to the place of occurrence along with the police party. On coming to the house of the appellant, Shivnath Prasad (P.W.8) recorded the Fardbeyan (Ext.5) of the informant Ignesia Xaxa (P.W.3). He himself took up the investigation during which he held inquest on the dead body of the deceased and prepared an inquest report (Ext.7) upon which a formal FIR (Ext.8) was drawn and the dead body was sent for post mortem examination which was conducted by Dr.Manvendra Kumar Singh (P.W.1), who upon holding autopsy did find following injuries.
(i) Incised wound from under surface to chin in midline to left angle at mandible and beyond in neck size 5 ½ " x 2" x bone deep mandible cut.
(ii) Incised wound from in front of lateral part of left cervical to apex of left arm pit size 5" x 1 ½ " x 2 ½ " auxiliary vessels and nerves were cut out completely.
(iii) Incised wound posterior at nape from spinal cord to right mastoid antrium size 4 ½ " x 1 ½ " x bone deep. Spinal cord was totally transacted at the level of 3rd and 4th cervical. Both vertibrae show mark of injuries.
(iv) Incised wound over neck just superior to middle part of right clavicle size 2" x ½ " x muscle deep.
All injuries were ante-mortem in nature and caused by sharp cutting instrument such as Tangi.
Doctor issued post mortem examination report (Ext.1) with an opinion that death was caused due to shock and haemorrhage on account of aforesaid injuries.
Meanwhile, the Investigating Officer seized earth smeared with blood and Tangi having blood mark over it under seizure list (Ext.6) from the place of occurrence. He also recorded the statements of the witnesses.
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On completion of investigation when the charge sheet was submitted, cognizance of the offence was taken. In due course, when the case was committed to the court of sessions, the appellant was put on trial during which the prosecution examined as many as eight witnesses. Of them, P.W.3 Ignesia Xaxa, who has testified that on the day of occurrence while she was in her house, she heard Balbanti calling upon her by saying that she is being assaulted by her husband. On hearing, she rushed there by raising alarm and when came to the house of the appellant, she found the door of the house closed. By that time, other villagers had also assembled, who by making way on the wall entered into the room where she found dead body of Balbanti. The appellant was also present, who was caught hold by the villagers. Subsequently, Tangi was recovered from the corner of that room which was seized by the police. The villagers tied down the appellant. On the next morning, when the police came, she gave her Fardbeyan which was recorded by the police. P.W.2, Linius Tirkey did testify that on hearing alarm raised by the informant, Ignesia Xaxa, she came to the house of the appellant but the door of the house was closed. They broke open the door and entered into the room in which they found the appellant present and Balbanti was lying dead under pool of blood. P.W.4, Rafail Ekka and P.W.5 Ishakh Kuzur are the witnesses to the inquest and also seizure of the weapon. P.W.7, Silvia Lakra is a hearsay witness, who has testified that they came to know from the villagers that the appellant has killed his wife.
After closure of the prosecution case, when the appellant was questioned under Section 313 of the Code of Criminal Procedure over the incriminating evidences appearing against him, he admitted that he did assault his wife with tangi after closing the door and killed her. He also admitted that he did so because he was suspecting that the deceased would be killing him by applying black magic. Further he has admitted that the Tangi from which he killed the deceased was recovered from the room.
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The trial court having placed its reliance on the testimonies of the witnesses particularly P.W.2 and P.W.3 and also the confession made by the appellant in his statement under Section 313 of the Code of Criminal Procedure that he killed his wife found the appellant guilty and recorded the order of conviction and sentence which is under challenge.
Mr. Manoj Tandon, learned counsel appearing for the appellant submits that accepting the entire evidences and the confession made by the appellant, the appellant can never be said to have killed his wife in a planned manner or intentionally, rather whatever happened, it must have happened in a fit of anger which the appellant developed as he was suspecting his wife to have been intending to kill him by applying black magic.
In this regard it was further submitted that admittedly the appellant belongs to a tribal community, who generally does fall to the pray of superstition and thereby the act of the appellant in all probability may not be intentional and if it is so, the appellant cannot be said to have committed offence under Section 302 of the Indian Penal Code, rather at best the case in that event would fall within the parameter of Section 304 Part II of the Indian Penal Code.
Learned counsel by referring to a decision rendered in a case of Badal Murmu and others vs. State of West Bengal [(2014) 3 SCC 366] submitted that the Hon'ble Supreme Court has observed that it has been seen usually that in a case of a person belonging to tribal community even a trivial incident leads to murder and that happens because of the reason that they come from very poor strata of the society and appear to be untouched by the effect of urbanization and live in their own world and thereby the Hon'ble Supreme Court did find that the appellant could not be held guilty for the offence under Section 302 of the Indian Penal Code, rather the proper section which needs be resorted to would be Section 304 Part II of the Indian Penal Code and under the circumstances, the appellant of the present case be also held not guilty 5 for the offence under Section 302, rather can be held guilty for the offence punishable under Section 304 Part II of the Indian Penal Code.
As against this, learned counsel appearing for the State submits that from the evidences appearing in the case it is quite evident that it was the appellant, who killed the deceased by assaulting her with Tangi and moreover, the appellant has confessed his guilt when incriminating evidences appearing against him was put to him and thereby the appellant cannot escape from being convicted under Section 302 of the Indian Penal Code.
Having heard learned counsel appearing for the parties and on perusal of the record, we do find that the case of the prosecution as has been testified by P.W.3, Ignesia Xaxa, the informant is that while she was in her house, she heard Balbanti (deceased) calling upon her as she is being assaulted by her husband. On hearing this, when P.W.3 by raising alarm went to the house of the appellant, she as well as the other villagers, who had assembled there by that time, found the door closed. After breaking it opon, they entered into the room and found the deceased dead having injuries on her person and the appellant was present at the room. The testimony of P.W.3 gets corroboration from the evidence of P.W.2.
Further we do find that the Investigating Officer did find earth smeared with blood and also Tangi, the weapon which was used for commission of the offence from that room and thereby the prosecution has been able to establish that it was the appellant, who killed his wife.
Furthermore, the appellant accepted at the stage of 313 of the Code of Criminal Procedure that he has killed his wife as he was suspecting that the deceased is intending to kill him by applying black magic. Thus, there remains no doubt whatever that it was the appellant, who killed the deceased.
Now the question in the context of the submission advanced on behalf of the appellant does arise as to whether the case falls within the 6 parameter of the provision as contained in Section 299 of the Indian Penal Code punishable under Section 304 Part II of the Code ?
It be recorded that the submission advanced on behalf of the appellant that social status of a person belonging to a tribal community is as such that even on a trivial matter, one commits murder of his dear one, reason being that they are not aware about the consequence of the act done by him and thereby even if a person belonging to a tribal community commits murder on trivial issue, he may not have intended to commit murder.
We do not find substance in the submission advanced on behalf of the appellant.
In the context of the submission advanced on behalf of the appellant, we will be referring to a decision rendered in a case of Virsa Singh vs. State of Punjab (AIR 1958 SC 465) wherein it has been observed that the prosecution must prove the following facts before it can bring a case under Section 300, "thirdly". First, it must establish quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature.
Their Lordships explained it further in the manner which is being given hereinunder:
" The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the 7 totality of the circumstances justify such an inference, then of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness but whether he intended to inflict the injury in question and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion."
Coming to the fact of the case, we may reiterate that as per the medical evidence, the appellant did cause as many as four injuries that too on the vital parts of the body by Tangi. Those injuries were sufficient to cause death in the ordinary course of nature. If the injuries were sufficient to cause death in ordinary course of nature, the intention would be presumed to be there for committing murder. There does not appear to be any circumstances appearing in the case warranting an apposite conclusion. The imaginative circumstance which was placed by learned counsel appearing for the appellant is not worth acceptable as it would be quite foreign to the provision as contained in Section 299 of the Indian Penal Code punishable under Section 304 Part II of the Indian Penal Code. The decision cited on behalf of the appellant is also not helpful in any manner as conviction was never altered from Section 302 to Section 304 Part II of the Indian Penal Code by their Lordships on the ground which is being sought to be applied by the appellant, rather in the fact and circumstances appearing in the case such as that the deceased was assaulted with lathi in spite of the fact that one of the accused was also holding sharp cutting weapon it was found that the case never falls within the parameter of Section 300 of the Indian Penal Code. 8
Under the circumstances, we do find that the trial court was absolutely justified in recording the order of conviction and sentence which is hereby affirmed.
In the result, this appeal stands dismissed.
( R.R.Prasad, J.) (Pramath Patnaik, J.) Jharkhand High Court, Ranchi, The 28th October, 2015, NAFR/ N.Dev