1. This appeal is directed against the judgment of conviction and order of sentence dated 30.01.1996 and 31.01.1996 respectively passed by Additional Sessions Judge, Gumla in S.T. No. 34 of 1990 whereby and whereunder the sole Appellant Walter Ekka has been convicted u/s 302 of the Indian Penal Code and sentenced to undergo imprisonment for life.
2. The prosecution case, in short, as per fardbeyan of P.W.-1 Beyalor Toppo is that Matiyas Ekka (deceased) was the brother of Pius Ekka and Pius Ekka died an year ago. His son Walter Ekka (Appellant) was residing in Andaman and Nikobar since last about 10-12 years. However, after the death of his father, he returned to village and was demanding half share in the ancestral land from his uncle Matiyas Ekka. It is alleged that Matiyas Ekka was not giving any heed to his demand. On 10.10.1989 while the informant was sitting along with P.W.-2, P.W.-3, P.W.-5, P.W.-6 and Matiyas Ekka (deceased) under a Tetar tree, Walter Ekka came from the village and demanded half share in paddy crop from Matiyas Ekka, which was refused by him, whereupon Walter Ekka had given a ''Daw'' (heavy sharp cutting weapon) blow on the neck of Matiyas Ekka, due to that he received cut injury and died.
3. On the basis of aforesaid fardbeyan police instituted Dumri P.S. Case No. 36 of 1989 dated 10.10.1989 u/s 302 of the Indian Penal Code and took up investigation. After completion of investigation, police submitted charge-sheet against the sole Appellant Walter Ekka u/s 302 I.P.C.
4. Charge u/s 302 IPC was framed against the sole accused/Appellant. The Appellant denied the charges and claimed to be tried. He was put on trial. Thereafter, prosecution examined altogether 9 witnesses in support of its case.
5. After closing of case of the prosecution, the accused-Appellant was examined u/s 313 of the Cr. P.C. in which his defence was of total denial.
6. Learned court on conclusion of trial held the Appellant guilty of the charges u/s 302 of the Indian Penal Code and convicted and sentenced the Appellant as aforesaid against that present appeal has been filed.
7. Learned Counsel for the Appellant has assailed the said judgment of court below and submitted that learned court below had taken into account the evidences of P.W.-1, P.W.-2, and P.W.-5 as eye witness of the occurrence, but, from perusal of cross examination of aforesaid three witnesses, it is clear that they are not the witness to the occurrence. Under the said circumstance the findings of the learned court below is not sustainable. Evidence of P.W.-3, cannot be relied upon because it does not find any corroboration from independent source. No case u/s 302 I.P.C. is made out. Even assuming the prosecution story is correct, then also, at best an offence u/s 304 Part-1 is made out, because there is sufficient materials on record to show that before the occurrence, the Appellant had quarrel with the deceased in connection with half share of paddy crop, which shows that the incident took place under the heat of passion on sudden quarrel. Learned Counsel submitted that the Appellant has been sufficiently punished for the offence u/s 304 Part-1 as he is in custody from about 19 years.
8. On the other hand learned Additional PP Submitted that even if the evidences of P.W.-1, P.W.-2, and P.W.-5 are excluded from the arena of consideration, the evidence of P.W.-3 is sufficient to hold the Appellant guilty for committing the present crime. The Appellant had come to the place of occurrence with a plan to commit murder of deceased and therefore the court below had rightly convicted and sentenced him for the offence u/s 302 I.P.C.
9. Having heard the submissions of the parties we have scrutinized the evidences on record. The Doctor who held autopsy on the dead body of the deceased Matiyas Ekka was examined in this case as P.W.-9. He deposed that on 10.12.1989 he held post-mortem examination on the dead body of the deceased and found one cut injury having the dimension of 5"x3" bone deep on posterior bone (side to side) on the neck causing cutting of cervical vertebrea along with neck muscle and spinal cord. He further opined that cutting of spinal cord lead to instantaneous death. He opined that the aforesaid injury was caused by heavy sharp cutting weapon like tangi, garansi or daw. On perusal of cross examination of this witness we find that defence had not challenged his aforesaid opinion regarding the cause of death. Thus, we are of the opinion that the prosecution has been able to prove that the deceased Matiyas Ekka died due to cut injury on his neck, caused by heavy sharp cutting weapon like daw.
10. Now the question remains to determine in this appeal is Whether the Appellant Walter Ekka had any hand in commission of the said crime? In order to prove the guilt of the Appellant prosecution examined P.W.-1-Beyator Toppo, P.W.-2-Albert Lakra, P.W.-3-Kaladious Toppo, P.W.-4-Salo Minj Kujur (wife of deceased), P.W.-5-Barnard Minj, P.W.-6-Lajrus Bara (tendered for cross examination), P.W.-7-Phaguna Miluar (Investigating Officer) and P.W.-8-Sayman Toppo.
11. On reading the statement made in examination in chief of P.W.-1, P.W.-2, P.W.-5, we find that though they had given detail about the occurrence as eye witness, they deposed that they had not seen the occurrence from their own eye. Thus it appears that the aforesaid 3 witnesses are not the eye witness of the occurrence, rather they are heresay on the point of occurrence. P.W.-4- Salo Minj Kujur is the wife of deceased who had deposed that at the time of occurrence she was in her house and after receiving information she had gone the place of occurrence where Beyator Toppo told about the occurrence.Thus this witness is also heresay on the point of occurrence. P.W.-8-Sayman Toppo is a witness of Inquest and seizure list, who proved his signature as well as signature of another witness on the said documents. He has not stated anything about the occurrence. We therefore find that the entire case of prosecution rests on the sole testimony of P.W.-3, Kaladious Toppo.
12. This witness had deposed that while he was sitting under the Tamarind (Tetar) tree along with Beyator Toppo, Albert Lakra, Bernard Minj, and Matiyas Ekka(deceased), Walter Ekka came there and demanded his share from Matiyas Ekka in the paddy crop. When Matiyas Ekka refused to give his share, Walter Ekka cut his neck with a Daw, and due to that Matiyas Ekka died. From perusal of cross examination of this witness we find that he remained consistent and nothing has been elicited by the defence on which his evidence can be thrown overboard. We find that this witness is wholly trustworthy and reliable. We further find that the evidence of P.W.-5 find full support from the Doctor (P.W.-9) who had also found cut injury on the neck of deceased with heavy sharp cutting weapon such as Daw. Under the aforesaid circumstance, we find that prosecution has proved that the deceased died due to injury inflicted with sharp cutting weapon on his neck by the Appellant.
13. From evidence of P.W.-5 we find that just before the occurrence the Appellant had quarrel with the deceased and demanded share in paddy crop, which was refused by the deceased. There is nothing to show that the Appellant had come to the place of occurrence with pre-meditation for committing the present crime. It appears that the present occurrence took place in the heat of passion upon sudden quarrel with respect to demand of share in the paddy crop. The instant case attracts exception 4 of Section 300 of the Indian Penal Code.
14. In view of the above discussion we find no case u/s 302 of Indian Penal Code is made out, however in our view offence of culpable homicide not amounting to murder, punishable u/s 304 Part-1, is made out against the Appellant.
15. In the result, this appeal is dismissed but with the aforesaid modification in the order of conviction and sentence, holding the Appellant guilty u/s 304 Part-1 I.P.C. We are informed that the Appellant has already remained in custody for about 19 years, he is sentenced to the period already undergone by him. The Appellant is ordered to be set at liberty forthwith, if not wanted in any other case.
