Research › Search › Judgment

Jharkhand High Court · body

2002 DIGILAW 1127 (JHR)

Vakil Murmu and Budhrai Hembrom v. State of Bihar

2002-10-11

LAKSHMAN URAON, VISHNUDEO NARAYAN

body2002
JUDGMENT Vishnudeo Narayan, J.-This appeal has been preferred by the appellants named above against the judgment dated 29.6.1990 passed in Sessions Case No. 150 of 1988/ 076 of 1989 by Shri Sheo Dayal Prasad Additional Sessions Judge, Pakur whereby and whereunder they were found guilty for the offence under Section 302/34 of the Indian Penal Code and they were con• victed and sentenced to undergo R.I. for life. 2. The prosecution case has arisen on the basis of the fardbeyan (Ext. 1) of P.W. 3 Baneshwar Murmu, the informant, recorded by Office-in-Charge, Muffasil P.S., District Sahebganj now (Pakur) on 27.1.88 at 10.45 hours at the P.S. premises regarding the occurrence which is said to have taken place on 26.1.88 at 19.00 hours at village Musamara in front of the house of P.W. 4 Sugi Soren, the widow of the deceased Budhrai Murmu. 3. The prosecution case in brief is that P.W. 3, the informant was at his house at 19.00 hours on 26.1.88 and he, on the alarms of P.W. 4, Sugi Soren, his aunt, came to the place of occurrence and he saw both the appellants climbing on the chest of Budhrai Murmu who was fallen on the earth and appellant Vakil Murmu was pressing the neck of the deceased Budhrai Murmu and on his arrival both the appellants started to flee away from there leaving the deceased there. The prosecution case further is that the informant caught the appellant Budhrai Hembrom whereas the appellant Vakil Murmu fled away. It is also alleged that he found Budhrai Murmu dead. It is also alleged that on alarms several persons of the village came there and they had seen appellant Vakil Murmu fleeing away from the place of occurrence and, thereafter, chowkidar was informed. Thereafter, the dead body of the deceased Budhrai Murmu along with the apprehended appellant Budhrai Hembrom was brought before the Police Station. It is also alleged that there had been a quarrel and exchange of abuses between the deceased and the appellant Vakil Murmu about a month ago as appellant Vakil Murmu has damaged the "Soap" of the deceased and since then there was tension between them and due to this the appellants have committed the murder of the deceased by throttling his neck. 4. 4. Both the appellants have pleaded not guilty to the charge levelled against them and they claimed themselves to be innocent and to have committed no offence and that they have been falsely implicated in this case at the instance of P.W. 3, Baneshwar Murmu. It has also been contended that the deceased was a patient of T.B. and he has died a natural death due to his illness and the deceased was issueless and the appellant Vakil Murmu as well as P.W. 3, Baneshwar Murmu, the informant were the agnates and with a view to grab the entire property of the deceased P.W. 3, Baneshwar Murmu, the informant has falsely implicated the appellant Vakil Murmu and his father-in-law, the appellant, Budhrai Hembrom. 5. The prosecution has in all examined seven witnesses to substantiate the charge levelled against the appellants. P.W. 3, Baneshwar Murmu is the informant of this case P.W. 4, Sugi Soren is the widow of the deceased of this case and she is the solitary eye witness of the alleged occurrence. P.W. 1, Laloo Kisku is a hearsay witness whereas P.W. 2, Mohan Kumar Murmu is a witness on the inquest report of the deceased. P.W. 5 is a formal witness who has proved the fardbeyan (Ext. 1). P.W. 6, Dr. Shea Kumar Gupta has conducted the post mortem examination on the dead body of the deceased and the post mortem report as per his pen is Ext. 2. P.W. 7, Dinanath Ram is the I.O. of this case and has proved the formal F.I.R., Inquest Report which are Ext. 3 and 4, respectively. 6. Assailing the impugned judgment of the learned court below it has been submitted by the learned counsel for the appellants that the learned court below has not at all considered the evidence on the record meticulously in proper perspective as well as the defence version of the appellants regarding their false implication in this case at the instance of P.W. 3, the informant and has gravely erred in coming to the finding of the guilt of the appellants. Elucidating his contention it has been submitted that the deceased was issueless having properties in the village and the informant as well as the appellant, Vakil Murmu are the agnates of the deceased and the informant was always creating obstructions in cultivation of the land of the deceased as a result of which the deceased and his widow were leading their life on alms and with a view to grab the property of the deceased the informant has falsely implicated the appellant, Vakil Murmu along with his father-in-law i.e. Budhrai Hembrom in this got up case when the deceased has died a natural death and he was a patient of T.B. It has also been submitted that the solitary testimony of P.W. 4, Sugi Soren, the widow of the deceased is replete with inherent improbabilities and material contradictions and she has given a different version of the manner of occurrence in her evidence on her oath and her testimony, therefore, is not at all reliable and fit to be brushed aside. It has also been submitted that the medical witness has not found any external injury on the dead body of the deceased in course of post mortem much less any injury on the neck of the deceased and as per the opinion of the medical witness the cause of death of the deceased could not be ascertained and there is, therefore, no legal evidence on the record to establish the prosecution case beyond all reasonable doubts. Therefore, the impugned judgment is unsustainable. 7. The learned A.P.P. has submitted that there is no denying the fact that the medical witness has not given the specific cause of the death of the deceased but the inquest report shows that there was swelling on the neck of the deceased and P.W. 4, Sugi Soren is a reliable witness who had the occasion to witness the occurrence and in view of her testimony, the learned court below has rightly found the appellants guilty and there is no illegality in the impugned judgment. 8. There is no denying the fact that Budhrai Murmu, the deceased of this case was issueless having landed properties in the village. Appellant, Vakil Murmu and P.W. 3, Baneshwar Murmu, the informant are the agnates of the deceased. P.W. 3, the informant, in para 9 of the evidence has deposed in respect thereof. 8. There is no denying the fact that Budhrai Murmu, the deceased of this case was issueless having landed properties in the village. Appellant, Vakil Murmu and P.W. 3, Baneshwar Murmu, the informant are the agnates of the deceased. P.W. 3, the informant, in para 9 of the evidence has deposed in respect thereof. He has also deposed that the property left by the deceased shall devolve upon him and his other agnates including the appellant Vakil Murmu. P.W. 4, Sugi Soren, the widow of the deceased in para 7 of her evidence has deposed that the appellant Vakil Murmu is the cousin of her deceased husband whereas the informant is a nephew of the deceased husband. Her evidence is further to the effect that the informant Baneshwar Murmu and Mohan Kumar Murmu do not allow her to cultivate her land and she is surviving on alms. It, therefore, appears in view of the evidence referred to above that the appellant Vakil Murmu shall be disentitled to inherit the deceased if he is proved to be the murderer of the deceased and in that case the entire property of the deceased shall be inherited by the informant. In this background let us now scan the evidence on the record. 9. P.W. 6, Dr. Sheo Kumar Gupta has deposed to have conducted the post mortem examination on the dead body of the deceased on 27.1.88 at 3.25 P.M. He has deposed that he did not find any ante mortem injury on the dead body of the deceased. He has also deposed that cause of death of the deceased' could not be ascertained. However, Viscera has been preserved for chemical examination. It is pertinent to mention here that no report of Viscera is on the record so as to establish the cause of the death of the deceased. It is also relevant to mention here that the medical witness has not said to have found any swelling mark on the neck of the deceased. Therefore, the averment in column 5 of the inquest report (Ext. 4) about the existence of swelling on the neck of the deceased does not stand corroborated as per the finding of P.W 6, the medical witness conducting the post mortem examination on the dead body of the deceased. P.W 7, the I.O. has not found anything incriminating to establish the alleged place of occurrence in this case. 4) about the existence of swelling on the neck of the deceased does not stand corroborated as per the finding of P.W 6, the medical witness conducting the post mortem examination on the dead body of the deceased. P.W 7, the I.O. has not found anything incriminating to establish the alleged place of occurrence in this case. The dead body of the deceased was brought at the police station by the informant for the. reasons best known to him. Therefore, there is no legal evidence at all on the record to establish the fact that the occurrence had taken place in front of the house of P.W 4, Sugi Soren near the bushes. 10. According to the prosecution case as averred in the fardbeyan (Ext. 1), P.W 3, the informant came to the place of occurrence on the alarms of P.W 4, Sugi Soren and saw the deceased fallen on the ground and both the appellants have climbed on his chest and the appellant Vakil Murmu was pressing the neck of the deceased and on his arrival both the appellants fled away and appellant Vakil Murmu was chased and caught by him. P.W. 3, the informant in para 6 of the evidence has deposed that the occurrence has taken place at 7 o'clock in the evening and at that time it was dark and P.W 4 was raising the alarms that the appellants have committed the murder of her husband, Budhrai Murmu. He has further deposed in para 2 of his evidence that when he reached at the place of occurrence he found the deceased dead. He has further deposed that he caught the appellant Budhrai Hembrom whereas the appellant Vakil Murmu had fled away. He has also deposed that both the appellants have committed the murder of the deceased by pressing the neck and testicle and the appellant Budhrai Hembrom had pressed the neck of the deceased whereas the appellants Vakil Murmu has pressed the testicle of the deceased. 11. In view of the evidence of P.W 3, the informant, referred to above he is not the eye witness of the actual commission of the murder of the deceased by the appellants as per his own showing that when he reached at the place of the occurrence he saw the deceased dead. 11. In view of the evidence of P.W 3, the informant, referred to above he is not the eye witness of the actual commission of the murder of the deceased by the appellants as per his own showing that when he reached at the place of the occurrence he saw the deceased dead. Therefore, his evidence that the appellant Budhrai Hembrom had pressed the neck of the deceased and the appellant Vakil Murmu has pressed the testicle of the deceased is not worthy of credit. Moreover P.W 3 does not say that he had seen both the appellants climbing on the chest of the deceased in his evidence on oath. Therefore, the evidence of P.W. 3, the informant is a hearsay evidence not worthy of credit. 12. P.W 4, Sugi Soren, the widow of the deceased has deposed that at the time of the occurrence she was cooking inside her house and the deceased was sitting in the verandah of the house and both the appellants came there and they called the deceased and at this the deceased came out of his house and there was a quarrel between them and, thereafter, the deceased called her and when she came out of the house she found Vakil Murmu was pressing the neck of the deceased after climbing on his body and the appellant Budhrai Hembrom was pressing the testicle of the deceased and she attempted to rescue her husband. At this she raised alarms and the informant came there on her alarms and he caught the appellant Budhrai Hembrom there whereas the appellant Vakil Murmu fled away. She has further deposed that thereafter, she found Budhrai Murmu, i.e. her husband dead. In para 10 of her cross examination she had stated that when she came out of the house on alarms she had found Budhrai Murmu, the deceased fallen on the ground and the neck of the deceased was being pressed and at that time several persons of the village including the informant besides the village chowkidar had come there. P.W. 4, in para 11 has further deposed that she has seen injuries on the testicle and blood was oozing out from the neck of the deceased. This evidence of P.W. 4, the informant is at variance with the medical evidence referred to above. P.W. 4, in para 11 has further deposed that she has seen injuries on the testicle and blood was oozing out from the neck of the deceased. This evidence of P.W. 4, the informant is at variance with the medical evidence referred to above. The evidence of P.W. 4 is not in conformity and consistent with the manner of the occurrence as alleged in the fardbeyan (Ext. 1). Therefore, P.W. 4, cannot be termed as an eye witness of the occurrence in question and the manner of occurrence of the prosecution case does not at all stand substantiated. Furthermore, there are several houses in the close vicinity of the place of occurrence as per evidence of P.W. 2 appearing in para 2. According to P.W. 4, a large number of persons have come to the place of the occurrence at the time of the alleged commission of the occurrence but none of the witnesses has taken oath in this case in support of the prosecution case and no explanation is forthcoming on the record as to why they have not taken oath in this case. Therefore, the solitary testimony of P.W. 4, the alleged ocular witness of the occurrence inconsistent with the manner of occurrence and against the objective finding of the medical witness uncorroborated in material particulars by any natural, independent and competent witness of the vicinity of the place of occurrence is fit to be brushed aside in the facts and circumstances of this case. The testimony of P.W. 4 is replete with inherent improbabilities and material contradictions which speaks volume of the authenticity of the prosecution case. There is also no' legal evidence on the record regarding the motive and genesis of the occurrence, i.e. regarding the damage caused to the "Soop" of the deceased by the appellant. Therefore, the false implication of the appellants in the facts and circumstances of this case at the instance of P.W. 3 cannot be totally ruled out. Therefore, the defence version of the false implication of the appellants in this case appears to be natural and probable. 13. The learned court below did not scan the evidence meticulously and in proper perspective and has gravely erred in coming to the finding of the guilt of the appellant. There is no legal evidence at all on the record to establish the prosecution case beyond reasonable, doubts. 13. The learned court below did not scan the evidence meticulously and in proper perspective and has gravely erred in coming to the finding of the guilt of the appellant. There is no legal evidence at all on the record to establish the prosecution case beyond reasonable, doubts. The impugned judgment, therefore, suffers with illegality and is unsustainable. 14. There is merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned judgment of the learned court below is hereby set aside. The appellants are not found guilty to the charge levelled against them and they are acquitted and discharged from the liability of the bail bond. Lakshman Uraon; J.-I agree.