Allowed

Ajeet Tirkey And Anr. v. State of Bihar

Jharkhand HC11 Dec 2024Cr.A(DB)/196/1999

Case brief

AI extract

What is this about?

Appeal against life sentence for murder with common intention. The fatal stone blow was attributed to the co-accused father; witnesses did not prove any specific overt act by the appellant. Common intention under Section 34 IPC was not established, so the conviction was set aside and the appellant acquitted.

What did the court decide?

Conviction and sentence under Section 302/34 IPC set aside; appellant acquitted and discharged from bail bond liability.

Ajeet Tirkey And Anr. Vs State of Bihar — Murder and Culpable Homicide | Jharkhand HC (2024)

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Criminal Appeal (D.B.) No. 196 of 1999(R)

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[ Against the Judgment of conviction and Order of sentence dated 25.06.1997, passed by learned Additional Sessions Judge-II, Gumla, in Sessions Trial Case No.199 of 1995 ]

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Ajeet Tirkey Son of Ahlad Tirkey, Resident of Village Bumtail, P.S. Dumri, District Gumla .... …. Appellant

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Versus

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The State of Bihar (Now the State of Jharkhand)

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Gudliba Khalkho of Village Bumtail, P.S. Dumri, District Gumla .... .... Respondents

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P R E S E N T

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HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA

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…… For the Appellant : Mr. Shashi Kant Ojha, Advocate For the State : Mr. B.N Ojha, Spl. P.P.

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C.A.V. on 22.10.2024 Pronounced on 11.12.2024

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Per Pradeep Kumar Srivastava, J.

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1. We have already heard Mr. Shashi Kant Ojha, learned counsel appearing for the appellant and Mr. B.N. Ojha, learned Spl. P.P. appearing for the State.

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2. The instant criminal appeal is directed against the judgment and order dated 25.06.1997 passed in Sessions Trial No.199 of 1995 by the Additional Sessions Judge-II, Gumla whereby and whereunder the appellant has been held guilty and sentenced for the offence under Section 302/34 of the Indian Penal Code and was directed to undergo rigorous imprisonment for life.

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FACTUAL MATRIX

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3. Factual matrix giving rise to this appeal in a narrow campus is that on 16.04.1995 at about 02:00 PM, Ajeet Tirkey (appellant) was assaulting the child of Gressa Khalkho by slap and fists which was intervened by Ignislas Khalkho and her husband Fabyanus Khalkho then Ajeet Tirkey caught hold of the neck of Ignislas Khalkho but she was saved by her husband. It is alleged that hearing hallah, father of Ajeet Tirkey namely Ahlad Tirkey (since deceased) came there and both of them started assaulting to Fabyanus Khalkho which was pacified by the villagers and both returned to their respective home. It is further alleged that after half an hour of the said occurrence, Ahlad Trikey and Ajeet Tirkey again came to the house of Fabyanus Khalkho and caught hold of him and brought out from his house to the front gate. Ahlad Tirkey (since deceased) gave a stone blow on the head with intention to kill Fabyanus Khalkho and Ajeet Tirkey (present appellant) also gave danda blow on the head of injured Fabyanus Khalkho, due to which Fabyanus Khalkho fell down on the ground and became unconscious. The injured was brought to police station, thereafter, sent to hospital by police for treatment who died in the course of treatment.

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On the basis of fardbeyan of informant Gudliba Khalkho (wife of the deceased), F.I.R. was registered for the offences under Sections 341, 448, 337, 323, 325, 307/34 of the I.P.C. Subsequently, on death of the injured Fabyanus Khalkho, the case was registered under Section 302/34 of the I.P.C.

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4. The charge of investigation was given to S.I. Bipin Bihari Verma (P.W.-13), who inspected the place of occurrence, recorded the statement of witnesses under Section 161 of the Cr.P.C. and prepared the inquest report of the deceased in presence of witnesses. He also seized the stone piece weighing ½ kg, prepared seizure list (Ex.5), sent the dead body of deceased for postmortem examination and obtained P.M. Report (Ex.2).

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5. The post-mortem was conducted and report was prepared by Dr. Mritunjay Sarawgi (P.W.-12) on 24.04.1995 at about 11:15 AM and following antemortem injuries were found on the body of deceased Fabyanus Khalkho:

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(i) Lacerated wound over left frontal region 3”x1/2”x1/2” deep with underlying linear Y shaped fracture of frontal bone with extradural hematoma.

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(ii) Healed wound over occipital region 1 ½”x1/2”

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Both the injuries were opined to be antemortem in nature caused by hard and blunt substance. Injury No.(i) was grievous in

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nature and sufficient to cause death in ordinary course of nature. The death was caused due to compression of brain leading to cardio respiratory failure. It was also opined that injury No.(i) may also be caused by fall on stony ground.

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6. The Investigating Officer after conclusion of investigation found sufficient evidence against the accused persons for commission of offence of murder in furtherance of their common intention and submitted charge-sheet under Section 302/34 of the I.P.C. The case was committed to the court of sessions, where S.T. Case No.199 of 1995 was registered. The accused persons denied the charges and claimed to be tried.

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7. In the course of trial, altogether thirteen witnesses were examined

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by the prosecution including the doctor and I.O. and following documentary evidence were also adduced:

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Exhibit 1 : Inquest report

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Exhibit 2 : P.M. Report of the deceased Exhibit 3 : Fardbeyan Exhibit 3/1 : Thumb impression of the informant on Fardbeyan Exhibit 4 : Formal F.I.R. Exhibit 5 : Seizure list

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8. The case of defence is denial from occurrence and false implication. However, no oral or documentary evidence has been adduced by defence.

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9. The learned trial court after apprising and evaluating the oral as well as documentary evidence adduced by prosecution arrived at conclusion that the accused persons in furtherance of their common intention to kill the deceased, have assaulted him and prosecution has been able to bring home the charges levelled against the accused persons beyond all reasonable doubt, hence, convicted and sentenced them for the offence under Section 302/34 of the I.P.C. as stated above which has been assailed in this appeal.

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10. Learned counsel for the sole appellant has submitted that the prosecution has miserably failed to prove exact participation of the appellant in the alleged crime and he has been falsely roped in this case. The appellant happens to be the son of main accused Ahlad Tirkey. It is further submitted that only one head injury caused by stone was found on the body of deceased which was responsible for his death resulting after one week of the incident. The injury No.(ii) was also consequence of injury No.(i). There was no injury to the deceased caused by lathi as attributed against the appellant Ajeet Tirkey. None of the witnesses of facts,

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examined in this case, have been able to prove the second phase of occurrence in which the deceased was brought out from his house and was assaulted rather there was specific allegation only against Ahlad Tirkey. In the evidence of witnesses, it has transpired that on the date of occurrence, there was a village festival in which present appellant was found in drunken state along with other persons, hence, he was grappled and beaten by villagers by slaps and fists. It is further submitted that the prosecution has miserably failed to prove the existence of “common intention” of the appellant along with his own father (Ahlad Tirkey since deceased) to kill the deceased. Therefore, conviction of appellant with the aid of Section 34 of the I.P.C. is not warranted under law. The appellant Ajeet Tirkey deserves to be acquitted from the charges levelled against him for the offence under Section 302/34 of the I.P.C. and this appeal may be allowed setting aside the impugned judgment and order.

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11. Per contra, learned Spl. P.P. appearing for the State has defended the impugned judgment and order of conviction and sentence of appellant passed by learned trial court and submitted that there are cogent and convincing evidence against the appellant showing his participation in the alleged offence of murder under the preplanned manner with his father Ahlad Tirkey. Learned trial court

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has committed no error of law in holding the appellant guilty for the offence under Section 302/34 of the I.P.C. There is no merit in this appeal which is fit to be dismissed.

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12. We have gone through the entire evidence available on record as well as impugned judgment and order in light of contentions raised on behalf of both sides.

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P.W.-1 Stanislash Khalkho has stated about the first phase

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of occurrence and stated that Ajeet Tirkey was assaulting to Gressa Khalkho by lappad thappad in which this witness intervened along with Fabyanus and Gudliba Khalkho which was pacified. Thereafter, he heard that Ahlad Tirkey and Ajeet Tirkey have assaulted to Fabyanus Khalkho with intention to kill him by a stone and lathi. After one week Fabyanus Khalkho died.

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In his cross-examination, he categorically states that at the time of second phase of occurrence, he was not present.

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P.W.-2 Gudliba Khalkho is the informant and wife of deceased. She has stated that at first Ajeet Tirkey was assaulting to Ignislas Khalkho which was intervened by her and her husband and other persons and matter was pacified. Thereafter, Ahlad armed with a heavy stone and his son Ajeet Tirkey having a danda came to his house and assaulted to her husband with intention to kill due to which he became unconscious. Her husband was

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brought to hospital, where her statement was recorded by the police.

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In her cross-examination, she admits that it was an occasion of village festival and Ajeet Tirkey was also assaulted by villagers. She has specifically stated that Ahlad has caused head injury to her husband by a big stone and Ajeet Tirkey was also present there and assaulted by danda.

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P.W.-3 Ingeran Minz appears to be hearsay witness in

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respect of second phase of occurrence and states in his crossexamination that when Fabyanus Khalkho was assaulted by stone she was not present there.

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P.W.-4 Sushila Minz has been tendered by prosecution.

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P.W.-5 Joseph Kerketta is also a hearsay witness and heard

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about causing of injury by stone to Fabyanus Khalkho by Ahlad Tirkey and also heard that Ajeet Tirkey caught hold of neck of the deceased. This witness has categorically stated that Ahlad Tirkey was having a stone but nothing was seen in the hand of Ajeet Tirkey.

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P.W.-6 Minzas Ekka is also not an eye witness of the occurrence and knows about the first phase of occurrence only.

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P.W.-7 Jashinta Khalkho is a child witness who was playing

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Pitto at the time of occurrence and she was assaulted by Ajeet Tirkey when she was returning her home to drink water.

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In her cross-examination, she has also specifically stated that as regard second phase of occurrence when Fabyanus Khalkho was assaulted by stone and lathi, she was not present and seen the said occurrence and she came to know from one Grace.

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P.W.-8 Sarojni Ekka has also stated about the first phase of

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occurrence when Ajeet Tirkey assaulted to Gloria and Jashinta which was pacified by villagers. Thereafter, Fabyanus Khalkho was assaulted by Ahlad Tirkey through a stone and Ajeet Tirkey assaulted by leg.

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In her cross-examination, she has not supported the second phase of occurrence, when Fabyanus Khalkho was assaulted.

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P.W.-9 Grace Khalkho has stated that her daughter Jashinta, Gloria was assaulted by Ajeet Tirkey through lappad thappad which was pacified by villagers. After half an hour Ajeet and his father Ahlad came to the house of Fabyanus Khalkho and assaulted him by stone and danda.

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From her cross-examination, it appears that at the time of second occurrence, she reached at the house of Fabyanus Khalkho (deceased) after he became unconscious due to sustaining injuries.

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P.W.-10 Maryus Minz has been tendered by the prosecution.

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P.W.-11 Mahendra Munda is a witness of inquest report of

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deceased.

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P.W.-12 Dr. Mritunjay Sarawgi has conducted autopsy on

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the dead body of the deceased.

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P.W.-13 is the Investigating Officer.

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13. From the testimony of ocular witnesses as discussed above, we

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find that the genesis of occurrence lies in the fact that present appellant assaulted to daughter of informant under drunken state on occasion of village festival, in which the present appellant was also assaulted by lappad thappad (slap and fists) by villagers and the matter was pacified. The second phase of occurrence consists in calling the deceased Fabyanus Khalkho from his house by the father of present appellant namely Ahlad Tirkey (since deceased) who has given a mighty blow through heavy stone on head of the deceased. Admittedly, the deceased was brought to police station and hospital on next day and in course of treatment he died within a week. We find that there is no element of forming any common intention between appellant and his father to kill the deceased. Most of the witnesses, except the informant, have expressed their ignorance about the second phase of occurrence and specific role attributed against appellant Ajeet Tirkey. The informant (P.W.-2)

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has also admitted in her cross-examination about presence of the appellant Ajeet Tirkey at the time of assaulting the deceased by Ahlad Tirkey but no specific overt act has been attributed against the appellant Ajeet Tirkey. There is no iota of evidence at all showing sharing of intention to cause death of deceased by the appellant with another co-accused. It appears that the learned trial court has convicted the appellant with the aid of Section 34 of the I.P.C., the ingredients of which has not been proved in this case at all. Therefore, conviction and sentence passed against the appellant Ajeet Tirkey is absolutely beyond the weight of evidence available on record and not warranted under law

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14. In view of the aforesaid discussions and reasons, we are of the firm view that the conviction and sentence of the appellant Ajeet Tirkey is based upon improper appreciation of evidence and beyond the materials available on record. Hence, we are constrained to held the appellant not guilty for the offence charged against him. Accordingly, conviction and sentence of appellant passed by learned trial court in S.T. Case No.199 of 1995 for the offence under Section 302 read with Section 34 of the I.P.C. is hereby set aside and the appellant is acquitted.

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15. The appellant is on bail and he is also discharged from the liability of bail bond and sureties are also discharged.

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16. Let a copy of this judgment along with trial court record be sent back to concerned trial court for information and needful.

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17. Pending I.A., if any, stands disposed of.

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(Rongon Mukhopadhyay, J.)

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(Pradeep Kumar Srivastava, J.)

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Jharkhand High Court, Ranchi Dated: 11/12/2024

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Sachin / NAFR

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Ajeet Tirkey And Anr. v. State of Bihar

Case brief

What is this about?

What did the court decide?

Ajeet Tirkey And Anr. v. State of Bihar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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