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Jharkhand High Court · body

2002 DIGILAW 1101 (JHR)

Siru Hembrom v. State of Bihar (Now Jharkhand)

2002-10-04

LAKSHMAN URAON, VISHNUDEO NARAYAN

body2002
Judgment Lakshman Uraon, J.- The sole appellant, Siru Hembrom, has preferred this jail appeal against the order of conviction and sentence dated 14.5.90 passed by the learned Sessions Judge, Dumka (Santhal Parganas), in S.T.No. 55/89, convicting and sentencing him under Section 302, IPC to undergo imprisonment for life. 2. The informant, Lal Murmu, PW-6, on 18.10.88, went to the P.S. Littipada, along with brother, Pradhan Murmu, Chini Hembram, PW-2, Mahal Chaukidar and Maisa Paharia, PW-3, taking the dead body of his mother, Nangia Hembrom and gave information that on 17.10.88 at about 5 P.M. the village Pradhan, Siru Hembrom (appellant) had gone to his home to assault his mother. The informant, his brother and his brother's wife had gone to bring wood towards the hill. His mother Nangia Hembrom had gone to the house of Ram Tudu, PW-4 for bringing paddy. At the home only Sona Marandi, PW-7, wife of the informant, was present. The appellant informed her that his wife is not recovering from her illness even after treatment only due to witchcraft practised on her by Nangia Hembrom. The appellant took a Sabal from the house of the informant and went to the house of Ram Tudu in search of Nangia Hembrom. Nangia Hembrom was found sitting on a cot in the courtyard of the house of Ram Tudu, PW-4. This appellant threw the Saba/ and picked up an axe which was kept there and assaulted with blunt portion of the Tangi on her head below the right ear and above the left eye resulting the death of Nangia Hembrom instantaneously. The alleged occurrence was witnessed by the villager, Lakhinder Tudu and Nagia Hembrom, wife of PW-4, Ram Tudu. The alleged occurrence took place in the house of Ram Tudu, PW-4, where Nangia Hembrom had gone to bring paddy. In his home his wife, PW-1, Nagia Hembrom and Lakhinder Tudu (since deceased) were present. Thus the eye-witness is only PW-1, Nagia Hembram. She has deposed that in her home, mother of the informant, Lal Murmu, had gone to collect Bhadai paddy. At that time Siru Hembrom went there with an iron sabal. He kept the sabal and picked up a Tangi and assaulted the mother of Lal Murmu. This witness, PW-1, Nagia Hembram, fled away from her home as Nangia Hembrom, mother of the informant had died. She has deposed that the witness, Lakhindra Tudu was also murdered. At that time Siru Hembrom went there with an iron sabal. He kept the sabal and picked up a Tangi and assaulted the mother of Lal Murmu. This witness, PW-1, Nagia Hembram, fled away from her home as Nangia Hembrom, mother of the informant had died. She has deposed that the witness, Lakhindra Tudu was also murdered. She has no knowledge as to whether the deceased was known as Daine in the village. Nangia Hembrom (deceased) was the daughter of the maternal uncle of this witness, Nagia Hembrom. Siru Hembrom assaulted the mother of Lal Murmu without any altercation but she could not see Siru Hembrom assaulting on her person, Para-5. 3. The informant, PW-6, Lal Murmu, was not present in his home rather he had gone to Jungle. At home, only his wife was present. When he returned home in the evening then his wife, Sona Marandi, PW-7, informed him that Siru Hembrom murdered his mother in the house of Ram Tudu. In the next morning he went to Thana and gave the information of the alleged occurrence which was recorded and read over to him on which he gave his L.T.I The reason of murder was that she was suspected to be a Daine. This appellant is the Pradhan of the village who used to settle the problems and disputes of the villagers. There was no Panchaiti regarding any witchcraft played by his mother. The appellant, Siru Hembrom, is the Gotia of the informant. His mother (deceased) was Fufi of this appellant. He is not the eye-witness but has deposed in Para-5 that the dead body of his mother was brought to his home by this appellant, Siru Hembrom, himself prior to his arrival to his home. Siru Hembrom was not present at home rather he had gone to his Sasural. When this witness returned home then he found Chaukidar and Gorait. In the evening his son, Pradhan Murmu, went to Thana but the Police did not go to his village at night. PW-7, Sona Marandi, is the wife of this witness, informant, PW-6. She was alone in her home on the date of the alleged occurrence. Her mother-in-law had gone to the house of Ram Tudu to bring paddy. Siru Hembrom (appellant) had gone to her home and informed that he was taking the Sabal to cause murder of her mother-in-law. PW-7, Sona Marandi, is the wife of this witness, informant, PW-6. She was alone in her home on the date of the alleged occurrence. Her mother-in-law had gone to the house of Ram Tudu to bring paddy. Siru Hembrom (appellant) had gone to her home and informed that he was taking the Sabal to cause murder of her mother-in-law. When asked, this appellant informed that her mother-in-law was a Daine. Thereafter the appellant brought the dead body of her mother-in-law to her home. She saw injuries on her parietal region. Thereafter, the appellant fled away. When the dead body was brought to the home of this witness then she was alone in her home. She had raised Hulla but none• went to her home. She had not stated before the I.O. that Siru Hembrom (appellant) brought the dead body of her mother-in-law to her home. PW-1, Nagia Hembram, wife of PW-4, Ram Tudu and Sona Marandi, PW-7, wife of Lal Murmu (informant), PW-6, were in their respective homes. PW-7 is not the eye-witness of the alleged assault on Nangia Hembrom. As per her evidence she was alone at home when Siru Hembrom had gone in search of her mother-in-law and had taken a Sabal. She was knowing that Siru Hembrom had taken a Sabal and had gone in search of her mother-in-law to assault her. She never raised any Hulla. She never followed Siru Hembrom. Again when Siru Hembrom brought the dead body of Nangia Hembrom to her home then she was alone at home. She did not inform anybody in the village rather she deposed that she raised Hulla but none went to her home. Siru Hembrom fled away keeping the dead body. PW-1, Nagia Hembram was in her home. She deposed that the appellant had given Tangi blow on the person of the mother of Lal Murmu resulting her death. Thereafter, she fled away. In the last line of Para-5 she had stated that she had not seen the appellant assaulting Nagia Hembram. She did not raise any Hulla in the village nor informed anybody else. In the evening when her husband, PW-4, Ram Tudu, returned from Hatia then she informed him about the alleged occurrence. Similar is the statement of Sona Marandi, PW-7, who informed about the alleged occurrence to her husband, informant, Lal Murmu, PW-7. She did not raise any Hulla in the village nor informed anybody else. In the evening when her husband, PW-4, Ram Tudu, returned from Hatia then she informed him about the alleged occurrence. Similar is the statement of Sona Marandi, PW-7, who informed about the alleged occurrence to her husband, informant, Lal Murmu, PW-7. Thus, neither Sona Marandi (PW-7) nor Nagia Hembram (PW-1) are to be believed as eye-witness. The other witness, PW-2, Chini Hembram, is not an eye-witness who gave his L.T.I. on the inquest report, prepared by the I.O. PW-3, Maisa Paharia, is also a hearsay witness who was informed about the alleged occurrence by the informant, Lal Murmu who himself is a hearsay witness. When he went to the home of Lal Murmu then he saw the dead body of Nangia Hembrom on the verandah. Ram Tudu is also a hearsay witness who was also informed about the alleged occurrence by his wife, PW-1, Nagia Hembram. 4. PW-5, Dr. Rajiv Kumar Verma, conducted the postmortem examination on the dead body of Nangia Hembrom on 18.10.88 at 3 P.M. and found the following ante mortem injuries on her person :- 1. Sharp cut bleeding injury behind the right ear in the neck 3" x bone deep. 2. Fracture of her left parietal bone. On opening of this injury he found collection of blood clots inside the skill cavity. 5. He opined that injury No.1 was caused by sharp weapon such as axe and injury No.2 was caused by blunt substance such as blunt side of axe. He also gave opinion that Nangia Hembrom had died due to shock and haemorrhage as the result of the above injuries. The time elapsed since death from the time of postmortem examination was within 12 hours. He prepared the postmortem examination report in his pen and signature, Ext. 1. In course of his evidence he has deposed that due to mistake he has mentioned the time elapsed since death as 12 hours in stead of about 24 hours. 6. PW-8, Arun Kumar, is a formal witness who has proved the FIR in the pen and signature of Arjun Choudhary, Ext. 2 and inquest report, Ext. 3. PW-9, Arjun Choudhary, is the I.O. of this case. 6. PW-8, Arun Kumar, is a formal witness who has proved the FIR in the pen and signature of Arjun Choudhary, Ext. 2 and inquest report, Ext. 3. PW-9, Arjun Choudhary, is the I.O. of this case. On 18.10.88 at about 11 A.M. the informant, Lal Murmu, PW-6, went to Thana carrying the dead body of his mother, Nangia Hembrom, alongwith Pradhan Hembram, Chini Hembram and Chaukidar Maisa Paharia. He recorded the statement of Lal Murmu on which he gave his L.T.I., Ext. 2. He prepared the inquest report in presence of witnesses, Ext. 3, and sent it for postmortem examination. He went to P.O. at about 3 P.M. on the same day which is the Angan of Ram Tudu, PW-4. He did not find any blood-stained Sabal or Tangi at the P.O. The other villagers who had gone to the P.O. alongwith the informant, were not examined by the I.O. He did not move in the village except the house and Angan of Ram Tudu. Sona Marandi, PW-7, had not stated before him that the appellant, Siru Hembrom, brought the dead body of her mother-in-law to her home. 7. The learned counsel who assisted the Court as Amicus Curiae, has stated that the date of the alleged occurrence is 17.10.88 at about 5 P.M. The Doctor, PW-5, conducted the postmortem examination on the dead body of Nangia Hembrom on 18.10.88 at 3 P.M. He has stated that the time elapsed since death from the time of the postmortem examination was within 12 hours. However, in course of evidence he has improved that in the postmortem examination report, Ext.1, he had stated that the death was within 12 hours due to slip of pen. The learned counsel has submitted that the documentary evidence, Ext.1 , the postmortem examination report prepared by Dr. Rajiv Kumar Verma, PW-5, will prevail over his oral evidence that he has mentioned the time elapsed since death from the postmortem examination as 12 hours, was due to mistake, can not be believed. If Ext. 1 is taken into consideration then the time of the alleged assault with Tangi on 17.10.88 at 5 P.M. does not get support with the medical evidence which is the postmortem examination report of Nangia Hembrom, Ext.5. If it is considered then the alleged murder must have taken place in between 2-3 A.M. on 18.10.88 at village Baru which is 10 Kms. If it is considered then the alleged murder must have taken place in between 2-3 A.M. on 18.10.88 at village Baru which is 10 Kms. away from Littipada Thana. The statement of the informant, Lal Murmu, was recorded on 18.10.88 at about 11 A.M. 8. PW-1, Nagia Hembram and PW-7, Sona Marandi, claimed to have seen, the alleged assault given by this appellant with Tangi. But as I have considered their evidence earlier, they can not be believed to be the eye-witnesses as PW-7, Sona Marandi, was all alone in her home. She saw the appellant, Siru Hembrom, taking Sabal from her home and again she saw this appellant who brought the dead body of Nangia Hembrom to her home. PW-1, Nagia Hembram, wife of PW-4, Ram Tudu, saw the alleged assault and fled away. She has stated that she did not see this appellant assaulting on the person of Nangia Hembrom. The other witnesses are the hear-say witnesses who got information from Lal Murmu (informant), PW-6. The informant himself is not the eye-witness rather he was informed about the alleged occurrence by his wife, Son a Marandi 9. In the village at about 5. P.M. there must be independent witnesses available at the time of the alleged occurrence. Even Nagia Hembram who fled away from her home neither informed anybody else nor raised any Hulla. Similar is the case with Sona Marandi, PW-7. When she was informed by the appellant that he was in search of her mother-in-law to assault her as she was a Daine and took Sabal from her home, she did not raise any Hulla or go to the village to inform anybody else nor she followed Siru Hembrom who had gone to the house of Ram Tudu. How Siru Hembrom brought the dead body from the house of Ram Tudu carrying alone and how he kept it in the house of the informant, were also not seen by anybodyelse. The Doctor, PW-5, found injury No.1 sharp cut bleeding injury behind the right ear in the neck 3" x bone deep. The other injury might have been caused from the blunt portion of the Tangi so blood would not have oozed out from injury No.2. But the blood must have fallen at the P.O. due to injury No.1. The I.O., PW-9, Arjun Chaudhary, went to the home of Ram Tudu. The other injury might have been caused from the blunt portion of the Tangi so blood would not have oozed out from injury No.2. But the blood must have fallen at the P.O. due to injury No.1. The I.O., PW-9, Arjun Chaudhary, went to the home of Ram Tudu. He did not find any blood-stained soil or Tangi. He also did not find any trail of blood drops from the house of Ram Tudu to the house of the informant. If the dead body of Nangia Hembrom was carried by the appellant from the house of Ram Tudu and was kept in the house of Lal Murmu then trail of blood must have been seen on the way. The Doctor also opined that the cause of death was due to injury Nos. 1 & 2 causing severe haemorrhage and shock. Postmortem examination on 18.10.88 at 3 P.M., was within 12 hours, Ext.1. This postmortem examination report also belies the time of the alleged assault with Tangi on the person of Nangia Hembrom as it is beyond 12 hours from the time of postmortem examination. PW-6, Lal Murmu (informant), has stated that Siru Hembrom is the village Pradhan who used to settle the village disputes. When he returned home from the Jungle, he found the village Chaukidar and Gorait. In the evening his younger son, Pradhan Murmu; went to Thana but on that day Daroga did not go to his village. This shows that the informant's son, Pradhan Murmu, informed the Police on the same day in the evening but the I.O. did not record his statement which would have been the FIR in this present case. 10. In view of my above consideration of the evidence of the witnesses including the alleged eye-witnesses, PW-1, Nagia Hembram and PW-7, Sona Marandi, it is doubtful that they are the eye-witnesses of the alleged occurrence. The informant, PW-6, Lal Murmu, came to know about the alleged occurrence from his wife, PW-7, Sona Marandi and the other witnesses PWs-2, 3 & 4 came to know from the informant, Lal Murmu, PW-6. The evidence of the Doctor, PW-5, does not support the time of the alleged occurrence. The I.O. PW-9, Arjun Choudhary, did not find any blood on Sabal or Tangi at the P.O. which creates doubt in the prosecution story. The evidence of the Doctor, PW-5, does not support the time of the alleged occurrence. The I.O. PW-9, Arjun Choudhary, did not find any blood on Sabal or Tangi at the P.O. which creates doubt in the prosecution story. It is not clear as to whether Nangia Hembrom was done to death by Tangi blows in the Angan of Ram Tudu, PW-4, itself or the dead body was brought in the morning of 18.10.88 from somewhere else and was kept in the house of the informant from where he took the dead body to the Thana. Non-finding of objective materials, i.e., blood-stained soil, blood-drops, Tangi and Sabal, creates doubt regarding the assault given by this sole appellant with Tangi by its blunt portion and sharp edged portion on the person of Nangia Hembrom resulting her death in the house of Ram Tudu. These benefits of doubt should go in favour of the appellant who deserves acquittal in view of the oral and documentary evidence discussed above by me. 11. In the result this criminal appeal is allowed. The impugned judgment and order of conviction and sentence passed by the learned Court below is hereby set aside. As the appellant is in custody, it is ordered that he be released forthwith if not wanted in any other case, Vishnudeo Narayan, J.-I agree.