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2000 DIGILAW 1123 (PAT)

Neemu Murmu v. State Of Bihar

2000-09-15

M.L.VISA, NARAYAN ROY

body2000
Judgment M.L.Visa, J. 1. This appeal by the sole appellant is directed against the judgment and order, dated 16-12-1993 and 20-12-1993, respectively, passed by 2nd Additional Sessions Judge, Godda, in Sessions Case No. 82 of 1988/46 of 1991 convicting and sentencing the appellant to undergo imprisonment for life under Sec. 302 read with Sec. 34 of the Indian Penal Code (in short, IPC) 2. The case of prosecution, in short, is that on 20-4-1968 in day time exchange of hot words and quarrelling took place between the wife of Mansa Hembram on one hand and Pradhan Tudu, father of informant Mattu Tudu (PW 1) and Chetan Tudu, grand-father of informant on other hand, Mansa went to her husband and sons and narrated the incident on which they came to the house of informant and abused his father and grand-father, who did not retard because husband and sons of Mans a were, at that time, in drunken state. On the same day in the night members of the family of informant after taking meal went to bed. The informant was talking with his grandfather Chetan Tudu sitting in the verandah. His buwa (aunt) and her daughter were also sleeping there on a cot. At about 1 Oclock in the night all of a sudden, the appellant carrying a pasani (a sharp-edged instrument for scraping palm tree) along with co-accused Mohan Murmu, who was also armed with pasani, Mansa Hembram, Khudu Hembram and Kunwar Hembram carrying lathis came there. Appellant and co-accused Mohan Tudu and Khudu Hembram caught hold of Chetan Murmu and threw him on a cot and appellant cut the throat of Chetan Murmu with pasani. When informant and his buwa raised hulla co-accused Mansa and Kunwar caught hold of his dhoti but any how he managed to get himself freed out in this process his dhoti was torn. Thereafter, his father and other persons from village came to the place of occurrence and appellant and his companions fled away. On the next day, i.e., on 21-4-1968, the informant went to the police station and lodged the FIR (Ext. 1) against the appellant as well as co-accused Mohan Murmu. Khudu Hembram, Kunwar Hembram and Mansa. Hembram under Sec. 302 read with Sec. 148, IPC. Police did not submit any report but cognizance was taken on the basis of a protest petition filed by the informant. 1) against the appellant as well as co-accused Mohan Murmu. Khudu Hembram, Kunwar Hembram and Mansa. Hembram under Sec. 302 read with Sec. 148, IPC. Police did not submit any report but cognizance was taken on the basis of a protest petition filed by the informant. Thereafter, the case was committed to the Court of Sessions Co-accused Mansa Hembram and Khudu Hembram died before commitment of the case to the Court of Sessions and thereafter, one more co-accused Mohan Murmu died. Charge under Secs. 302/34, IPC was framed against the appellant and co-accused Kuwar Hembram and they were put on trial because they denied the charge against them. The case of defence as it appears from the trend of cross-examination of prosecution witnesses is that the informant and Chhitu Tudu, daughter of deceased, committed the murder of deceased in order to grab his property and they falsely implicated the appellant on account of their enmity with him. After trial the appellant and co-accused Kuwar Hembram were found guilty under Sec. 302 read with Sec. 34, IPC and were convicted and sentenced to undergo imprisonment for life. Co-accused Kunwar Hembram has not joined the appellant in this appeal. 3. In order to prove its case, the prosecution has examined four witnesses. Mattu Tudu, (PW 1), the informant and Chhita Tudu, (PW 4) the daughter of deceased are said to be the eye-witnesses to the occurrence. Disho Tudu (PW 2), son of deceased and Tikka Soren, (PW 3) are hearsay-witnesses. 4. Mattu Tudu (PW 1), informant, in his evidence has stated that at the time of occurrence, he was in the verandah of the house of the deceased where, his buwa Chhita Tudu, (PW 4) along with his daughter was also there and on that day in the day time a quarrel had taken place between his family members and wife of Mansa Hembram and he was talking with the deceased in that context when at about 12-1 Oclock appellant along with Mohan Murmu, Khudu Hembram, Kunwar Hembram and Mansa Hembram came there. Appellant and Mohan were carrying pasani and remaining co-accused were armed with lathis. Appellant and Mohan were carrying pasani and remaining co-accused were armed with lathis. According to him, the appellant and co-accused Mohan Murmu and Khudu Hembram threw the deceased on a cot and appellant thereafter, cut his neck with pasani and when he raised alarm co-accused Kunwar Hembram and Mansa Hembram ran to catch him but he raising alarm fled away from there towards the house of Tikka Soren and hearing hulla raised by him Tikka Soren, (PW 3). Barka Hembram, Matru Besra and others from the village came there and appellant and his companions fled away. He and other villagers chased them and thereafter, he and Chhita Tudu told the witnesses about the occurrence. He has further said that deceased died in the night but he could not inform the occurrence to police in the night and on the next day in the morning he went to police station and lodged the FIR (Ext. 1). According to him, the police after investigation submitted final report and he filed a protest petition against that report and thereafter, the case proceeded on the basis of protest petition. In his cross-examination, he has admitted that the appellant happens to be the son-in-law of Fagu Tudu and there was a proceeding under Sec. 145, Cr. P.C. between the wife of Fagu Tudu on one hand and his family members on other hand. In para 41 of his cross-examination, he has admitted that on seeing the appellant and his companions, he escaped from the house and ran towards the house of Tikka Soren and Matru Besra raising alarm and thereafter, when he again came to the place of occurrence by that time the deceased had already direct and Chhita Tudu was raising hulla. This evidence suggests that he is not an eyewitness to the occurrence because by the time he again reached the house of deceased, the deceased had already died. I further find that he has admitted that the police had seized a dhoti from his house and had arrested him for the murder of deceased but he has stated that in that case police submitted final form but the appellant and other co-accused persons filed a protest and thereafter: that case was also committed to the Court of Sessions but he had not received any information about the commencement of the trial of that case. 5. 5. Chhita Tudu (PW 4), the daughter of deceased, has stated that at the time of occurrence her father was talking with the informant in respect of land dispute by sitting at the verandah of his house. She along with her daughter was also there when appellant alongwith co-accused Mansa, Kunwar, brother of Kunwar came there and co-accused Mohan threw her father on a cot and appellant cut the neck of her father with pasani, who died there. When she tried to raise alarm the appellant and his companions stopped her mouth with cloth and informant fled away after raising alarm and thereafter, Tika, Matru and others from her village came there. In cross-examination, she has admitted that deceased was having land dispute with the appellant at the time of occurrence. 6. Dasho Tudu (PW 2), son of deceased, has said that on the day of occurrence he was in the village Bhikhari Kila where he was informed by Sajhla Soren, about the occurrence and when he reached the village Chansar his sister Chhita Tudu told him about the occurrence. Tika Soren, (PW 3) has said that at the time of occurrence, he was sleeping in his house and after hearing hulla when he went to the house of deceased he saw five persons running away but he could not identify any of them and after reaching the house of deceased, he found the neck of-deceased cut and Chhita Tudu told him that appellant and his companions had committed the murder, of her father. 7. So, from the evidence on record, I find that out of four witnesses two have claimed to be eyewitnesses to the occurrence but evidence of informant does not support the case of prosecution that he is an eye-witness to the occurrence in view of his statement-that on seeing the accused persons he fled away and thereafter, when he returned the deceased had already died. Now, there remains the only evidence of Chhita Tudu (PW 4), daughter of deceased. The prosecution has neither examined the Doctor nor the 10. As the informant has stated that police did not submit any report of investigation after lodging of the FIR in this case and the case proceeded on the basis of protest petition; perhaps, this is the reason for non-examination of the 10 by the prosecution. The prosecution has neither examined the Doctor nor the 10. As the informant has stated that police did not submit any report of investigation after lodging of the FIR in this case and the case proceeded on the basis of protest petition; perhaps, this is the reason for non-examination of the 10 by the prosecution. But, so far as Doctor is concerned, no explanation has come forward by prosecution for his non examination. There is no post-mortem examination report on record. In absence of medical evidence on record, the cause of death of deceased is not established. 8. Mr. Lala Kailash Behari Prasad, learned counsel appearing on behalf of the State, has submitted that even in absence of medical evidence, conviction of an accused under Sec. 302, IPC can be upheld if prosecution by adducing other evidence proves that it was the accused, who committed the murder of the deceased. In the present case, except the evidence of Chhita Tudu there is no eyewitness to the occurrence and admittedly, the appellant, who was having land dispute with the deceased and was on inimical terms with him. The evidence of Tika Soren, (PW 3) that on hearing hull a raised by Chhita Tudu (PW 4) when he ran towards the house of deceased, he saw five persons running away from there but he could not identify anyone of them is very significant. Admittedly, he belongs to the same village to which appellant belongs and had the appellant been among those five persons must have identified him. In this view of the matter, I do not find it safe to rely on the solitary evidence of Chhita Tudu and that too in absence of any medical evidence on the point of cause of death. The conviction and sentence of appellant, therefore, cannot be uphold in view of such type of evidence. 9. In the result, this appeal is allowed and the judgment and order of the Court below convicting and sentencing the appellant is hereby set aside. The appellant is acquitted and he is ordered to be released forthwith from jail if not wanted in any other case.