Isdor Kullu Vs. State of Jharkhand - Court Judgment

SooperKanoon Citationsooperkanoon.com/51479
CourtJharkhand High Court
Decided OnMay-13-2015
AppellantIsdor Kullu
RespondentState of Jharkhand
Excerpt:
1 criminal appeal (d.b.) no. 854 of 2005 …... against the judgment of conviction dated 24/05/2004 and order of sentence dated 25/05/2004 passed by the additional district & sessions judge, fast track court no.-i, gumla in sessions trial no. 216 of 2000. …... isdor kullu appellant versus the state of jharkhand --- respondent for the appellant : ms. alpana verma, amicus curiae. for the respondent : mr. h.k. shikarwar, a.p.p. ….... present hon'ble mr. justice r.r. prasad hon'ble mr. justice pramath patnaik judgment by court : this appeal is directed against the judgment of conviction dated 24.05.2004 and order of sentence dated 25.05.2004 the additional sessions judge-cum-fast track court no. i, gumla in sessions trial no. 216 of 2000 whereby and whereunder the court having found the appellant guilty for committing murder of his wife gloria kerketta, convicted him for the offence punishable under section 302 of ipc and sentenced him to undergo for imprisonment for life.2. the case of the prosecution as has been made out in the fardbeyan is that on 21.08.2000 while informant pollus kullu, p.w. 9, as well as his wife dholly kerketta, p.w. 1, were in the house, dholly kerketta heard distress sound coming from the house of informant's brother isdor kullu the appellant. upon it p.w. 9, pollus kullu when came to house of his brother isdor kullu he saw appellant catching hold of his wife gloria kerketta from whose neck blood was coming out and at that time, the appellant gave tangi blows over the head of his wife, the deceased. when the informant made protest, the appellant by leaving his wife ran towards him for assaulting him. the informant (p.w.9) fled from there by raising alarm that his brother has killed his wife. on hearing him several villagers assembled there. meanwhile, he brought chowkidar there, but by that time the appellant had left home. meanwhile, police reached over there and recorded the fardbeyan (ext.4) of the informant where the informant stated that since his bhabhi was not bearing any child and that his 2 brother was suspecting her to be unchaste his brother killed her. upon it a formal fir (ext-4) was drawn. he took up the matter for investigation during which he held inquest on the body of the deceased and prepared an inquest report.3. thereupon the dead body was sent for post mortem examination which was conducted by doctor, dr. manvendra kumar singh, p.w.8. on holding autopsy he did find following injuries:- (i) one incised would 1” above right mustoid antrum measuring 3”x 11/2”x brain deep, right perital and occipital bone were fractured; (ii) one incised would over right temporal region 3”x1” x bone deep right temporal bone fractured; (iii) one incised would in front of right tragus measuring 1”x1/2”x brain deep, right jagomatic process fractured; (iv) one incised wound over nape of neck 5”x 21/2”x bone deep. (v) cervical vertibera cut brain and meninges lacerated, clotted bood present in cranial cavity.4. the doctor, issued post mortem examination report (ext. 2), with an opinion that death was caused due to shock and hemorrhage on account of sharp cutting injuries could by weapon like tangi.5. meanwhile, the i.o. recorded the statements of the witnesses. on completion of investigation when the charge sheet was submitted, cognizance of the offence was taken against appellant. when the case was committed to the court of sessions, the appellant was put on trial. during which the prosecution examined as many as 12 witnesses. of them p.w. 12 is a formal witness who has proved the fardbeyan and a formal fir as ext. 4 and 5 respectively.6. p.w. 1, dholly kerketta, wife of the informant has simply testified that when she went to the place of occurrence she found injury on the persons of the deceased. p.w. 2 jarol dungdung, p.w. 3 kelibas tete are the hearsay witnesses who had testified that they came to know from the pollus kullu (p.w. 9), the informant that the appellant has killed his wife. p.w. 4 suraj dayal singh is a witness to the inquest and seizure of tangi. p.ws. 5, 6 and 7 did 3 not support the case of the prosecution. p.w. 9, the informant, pollus kullu, who in his fardbeyan has stated that he had seen the appellant killing his wife has not supported his earlier statement made in the fardbeyan as he has testified that when he came to the house of the appellant, he found dead body of his bhabhi lying in the courtyard beside whom a blood stained tangi was lying there. however, he has testified that there used to be frequent altercation in between the wife and husband as the deceased was not bearing any child. p.w. 10, eric surin, also happens to be a hearsay witness as he has testified that he came to know from the villagers that the appellant has killed his wife. p.w. 11, mikhaill dungdung is a witness to the seizure of tangi. after closure of the case of prosecution when the appellant was questioned about the incriminating evidence appearing against him u/s 313 of cr.p.c. he simply denied it. thereupon, the court having relied upon that part of the evidence of p.w. 9 testifying that when he came to the house of appellant he found the deceased dead and that appellant was quite suspicious of the character of his wife, recorded the order of conviction and sentence, which is under challenge.7. ms. alpana verma, who has been appointed as amicus curiae to assist the court, submits that though the prosecution has examined 12 witnesses but, none of them has seen this appellant committing murder of the deceased and thereby no evidence is there to the effect that the appellant did assault his wife as a result of which she died and thereby the trial court committed illegality in recording the order of conviction and sentence against appellant.8. mr. h.k. shikarwar, learned counsel appearing for the state submits that it is true that the witnesses have not come forward to depose that they have seen the appellant committing murder of his wife but the circumstance is as such which go to indicate that it could be only the appellant who committed murder of his wife and none else and thereby the trial court has rightly convicted the appellant and hence, the order of conviction and sentence does not warrant to be interfered with.9. having heard counsel appearing for the parties and on perusal of the record, we do find that the pollus kullu, p.w. 9, in his fardbeyan had specifically stated that when he heard the 4 distress sound coming from the house of this appellant, he went there and found the appellant assaulting his wife as a result of which she died, but, he in his evidence has not supported that fact. he, however, in his evidence has testified that when he came to the house of the appellant he found the deceased dead in the courtyard, he never saw the appellant assaulting the deceased. other witnesses either have not supported the case of the prosecution or are the hearsay witnesses, who derived their knowledge either from p.w. 9, pollus kullu or from villagers.10. thus, it is evident that no one is the eye witness to that incidence. but the fact remain that the deceased was found killed in the house where the appellant and his wife were leaving. in such event, the burden was upon the appellant to explain as to how the deceased died as it must be within his knowledge. but the appellant does not seems to have discharged his burden as he has simply denied the incriminating evidence appearing against him. he never came forward to explain as to how the deceased died, though number of injuries were there over the persons of the deceased which according to the doctor have been inflicted with the sharp cutting weapon. in absence of such explanation, only contention which could be drawn that it was the appellant who committed murder of his wife because the relationship in between the deceased and appellant was not good, on account of fact that the appellant was suspicious of the character of the deceased ,who at the same time was not bearing child which fact has been testified by the p.w. 9 as well as by p.w.3. 11. under the circumstances, we do find that the trial court has rightly convicted and sentenced the appellant. accordingly, the judgment of conviction and order of sentence is hereby affirmed. this appeal stands dismissed. (r.r. prasad, j.) (pramath patnaik, j.) jharkhand high court, ranchi dated 13th may, 2015 mm/ nafr
Judgment:

1 Criminal Appeal (D.B.) No. 854 of 2005 …... Against the judgment of conviction dated 24/05/2004 and order of sentence dated 25/05/2004 passed by the Additional District & Sessions Judge, Fast Track Court No.-I, Gumla in Sessions Trial No. 216 of 2000. …... Isdor Kullu Appellant Versus The State of Jharkhand --- Respondent For the Appellant : Ms. Alpana Verma, Amicus Curiae. For the Respondent : Mr. H.K. Shikarwar, A.P.P. ….... PRESENT HON'BLE MR. JUSTICE R.R. PRASAD HON'BLE MR. JUSTICE PRAMATH PATNAIK JUDGMENT

By Court : This appeal is directed against the judgment of conviction dated 24.05.2004 and order of sentence dated 25.05.2004 the additional Sessions Judge-cum-Fast Track Court No. I, Gumla in Sessions Trial No. 216 of 2000 whereby and whereunder the court having found the appellant guilty for committing murder of his wife Gloria Kerketta, convicted him for the offence punishable under section 302 of IPC and sentenced him to undergo for imprisonment for life.

2. The case of the prosecution as has been made out in the fardbeyan is that on 21.08.2000 while informant Pollus Kullu, P.W. 9, as well as his wife Dholly Kerketta, P.W. 1, were in the house, Dholly Kerketta heard distress sound coming from the house of informant's brother Isdor Kullu the appellant. Upon it P.W. 9, Pollus Kullu when came to house of his brother Isdor Kullu he saw appellant catching hold of his wife Gloria Kerketta from whose neck blood was coming out and at that time, the appellant gave tangi blows over the head of his wife, the deceased. When the informant made protest, the appellant by leaving his wife ran towards him for assaulting him. The informant (P.W.

9) fled from there by raising alarm that his brother has killed his wife. On hearing him several villagers assembled there. Meanwhile, he brought chowkidar there, but by that time the appellant had left home. Meanwhile, police reached over there and recorded the fardbeyan (Ext.

4) of the informant where the informant stated that since his bhabhi was not bearing any child and that his 2 brother was suspecting her to be unchaste his brother killed her. Upon it a formal FIR (Ext-4) was drawn. He took up the matter for investigation during which he held inquest on the body of the deceased and prepared an inquest report.

3. Thereupon the dead body was sent for post mortem examination which was conducted by doctor, Dr. Manvendra Kumar Singh, P.W.

8. On holding autopsy he did find following injuries:- (i) one incised would 1” above right mustoid antrum measuring 3”x 11/2”x brain deep, right perital and occipital bone were fractured; (ii) one incised would over right temporal region 3”x1” x bone deep right temporal bone fractured; (iii) one incised would in front of right tragus measuring 1”x1/2”x brain deep, right jagomatic process fractured; (iv) one incised wound over nape of neck 5”x 21/2”x bone deep. (v) Cervical vertibera cut brain and meninges lacerated, clotted bood present in cranial cavity.

4. The doctor, issued post mortem examination report (Ext. 2), with an opinion that death was caused due to shock and hemorrhage on account of sharp cutting injuries could by weapon like Tangi.

5. Meanwhile, the I.O. Recorded the statements of the witnesses. On completion of investigation when the charge sheet was submitted, cognizance of the offence was taken against appellant. When the case was committed to the court of sessions, the appellant was put on trial. During which the prosecution examined as many as 12 witnesses. Of them P.W. 12 is a formal witness who has proved the fardbeyan and a formal FIR as Ext. 4 and 5 respectively.

6. P.W. 1, Dholly Kerketta, wife of the informant has simply testified that when she went to the place of occurrence she found injury on the persons of the deceased. P.W. 2 Jarol Dungdung, P.W. 3 Kelibas Tete are the hearsay witnesses who had testified that they came to know from the Pollus Kullu (P.W. 9), the informant that the appellant has killed his wife. P.W. 4 Suraj Dayal Singh is a witness to the inquest and seizure of Tangi. P.Ws. 5, 6 and 7 did 3 not support the case of the prosecution. P.W. 9, the informant, Pollus Kullu, who in his fardbeyan has stated that he had seen the appellant killing his wife has not supported his earlier statement made in the fardbeyan as he has testified that when he came to the house of the appellant, he found dead body of his Bhabhi lying in the courtyard beside whom a blood stained Tangi was lying there. However, he has testified that there used to be frequent altercation in between the wife and husband as the deceased was not bearing any child. P.W. 10, Eric Surin, also happens to be a hearsay witness as he has testified that he came to know from the villagers that the appellant has killed his wife. P.W. 11, Mikhaill Dungdung is a witness to the seizure of Tangi. After closure of the case of prosecution when the appellant was questioned about the incriminating evidence appearing against him u/s 313 of Cr.P.C. he simply denied it. Thereupon, the Court having relied upon that part of the evidence of P.W. 9 testifying that when he came to the house of appellant he found the deceased dead and that appellant was quite suspicious of the character of his wife, recorded the order of conviction and sentence, which is under challenge.

7. Ms. Alpana Verma, who has been appointed as Amicus Curiae to assist the Court, submits that though the prosecution has examined 12 witnesses but, none of them has seen this appellant committing murder of the deceased and thereby no evidence is there to the effect that the appellant did assault his wife as a result of which she died and thereby the Trial Court committed illegality in recording the order of conviction and sentence against appellant.

8. Mr. H.K. Shikarwar, learned counsel appearing for the State submits that it is true that the witnesses have not come forward to depose that they have seen the appellant committing murder of his wife but the circumstance is as such which go to indicate that it could be only the appellant who committed murder of his wife and none else and thereby the trial court has rightly convicted the appellant and hence, the order of conviction and sentence does not warrant to be interfered with.

9. Having heard counsel appearing for the parties and on perusal of the record, we do find that the Pollus Kullu, P.W. 9, in his fardbeyan had specifically stated that when he heard the 4 distress sound coming from the house of this appellant, he went there and found the appellant assaulting his wife as a result of which she died, but, he in his evidence has not supported that fact. He, however, in his evidence has testified that when he came to the house of the appellant he found the deceased dead in the courtyard, he never saw the appellant assaulting the deceased. Other witnesses either have not supported the case of the prosecution or are the hearsay witnesses, who derived their knowledge either from P.W. 9, Pollus Kullu or from villagers.

10. Thus, it is evident that no one is the eye witness to that incidence. But the fact remain that the deceased was found killed in the house where the appellant and his wife were leaving. In such event, the burden was upon the appellant to explain as to how the deceased died as it must be within his knowledge. But the appellant does not seems to have discharged his burden as he has simply denied the incriminating evidence appearing against him. He never came forward to explain as to how the deceased died, though number of injuries were there over the persons of the deceased which according to the doctor have been inflicted with the sharp cutting weapon. In absence of such explanation, only contention which could be drawn that it was the appellant who committed murder of his wife because the relationship in between the deceased and appellant was not good, on account of fact that the appellant was suspicious of the character of the deceased ,who at the same time was not bearing child which fact has been testified by the P.W. 9 as well as by P.W.

3. 11. Under the circumstances, we do find that the trial Court has rightly convicted and sentenced the appellant. Accordingly, the judgment of conviction and order of sentence is hereby affirmed. This appeal stands dismissed. (R.R. Prasad, J.) (Pramath Patnaik, J.) Jharkhand High Court, Ranchi Dated 13th May, 2015 MM/ NAFR