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2002 DIGILAW 1165 (JHR)

Shiva Charan Hembrum v. State of Bihar

2002-11-18

LAKSHMAN URAON, VISHNUDEO NARAYAN

body2002
JUDGMENT : By Court.- This appeal has been directed by the sole appellant named above against the' impugned judgment dated 24.3.1994 passed by Shri Dinesh Narain Pathak, 6th Additional Sessions Judge, Dumka. in Sessions Case No. 238 of 1993 whereby and whereunder the appellant was found guilty for the offence punishable under Section 302/34 of the Indian Penal Code and he was convicted and sentenced to undergo R.I. for life. However, the co-accused Rupin Murmu, the wife of the appellant has been acquitted. 2. The prosecution case has arisen on the basis of the F.I.R. (Ext. 2) of P.W. 10 Malin Hembrum, the son of Mangal Hembrum who is the deceased of this case recorded by P.W. 11, Dinanath Mishra, the 1.0. on 7.11.92 at 4.00 hours at Dumka Muffasil P.S. regarding the occurrence which is said to have taken place on 6.11.92 between 8.00 P.M. and 9.00 P.M. in front of the house of P.W. 9, Jiwan Hembrum in village Ranidinda, P.S. Dumka Muffasil, District Dumka. 3. According to the prosecution case the deceased is the full brother of the appellant and the informant is the son of the deceased and the deceased and the informant were on litigating terms prior to the occurrence and there had been quarrels on several occasions between them and the proceeding under Section 107 of the Cr.P.C. had also taken place between them prior to the occurrence. It is alleged that the appellant along with the acquitted accused Rupin Murmu came to the courtyard of the informant and asked the deceased to accompany them and at this the deceased went out of his house in their company. It is also alleged that soon, thereafter, P.W 10, the informant and P.W 4, the wife of the deceased followed them. The prosecution case further is that when the appellant along with the deceased and acquitted accused Rupin Murmu reached near the house of P.W. 9, Jiwan Hembrum, a scuffle took place between them and the appellant along with his wife Rupin Murmu felled the deceased on the ground and, thereafter, the appellant took out a dagger from his pocket and inflicted a blow on the chest of the deceased causing a bleeding injury and, thereafter, on alarms P.W. 3, Arjun Hembrum and P.W. 8 Neelamji Hansda came there and the appellant along with Rupin Murmu fled away from there. Mangal Hembram was brought to his house from the place of occurrence by the informant and others where he died. 4. The appellant has pleaded not guilty to the charge levelled against him and he claims himself to be innocent and to have committed no offence and that he has been falsely implicated in this got up case due to enmity which is still existing and alive. 5. The prosecution has in all examined 12 witnesses to substantiate the charge levelled against the appellant. P.W. 10, Malin Hembrum and P.W. 4, Sukar Muni Soren are the son and widow respectively of the deceased of this case and Ext. 1/6 is the signature of P.W. 10 on the F.I.R., (Ext. 2) and P.W 10 and P.W.4 are said to be the only ocular witnesses of the occurrence in question. P.W 3, Arjun Hembrum, P.W. 8, Neelamji Hansda, P.W. 5 Sukhu Hansda, P.W. 6, Sidhu Hembrum and P.W 7, Nehal Marandi are the hearsay witnesses of the occurrence in question and they were told about the occurrence by P.W. 10 and P.W 4. However, P.Ws. 3 and 8 have come to the place of occurrence and they claimed to have seen Mangal Hembrum in the injured state fallen at the place of occurrence and writhing in pains. P.W. 12 is the medical witness who has conducted the postmortem examination on the dead body of the deceased and the postmortem report as per his pen is Ext. 5 in this case. P.W. 11 is the I.O. of this case who has proved the F.I.R., (Ext. 2), the Inquest Report (Ext. 3) and the seizure list (Ext. 4) in respect of the seizure of a knife stated to have blood stains thereon from the house of one Jitru Soren and Ext. 1/5 and Ext. 1/4 are the signatures of P.W. 5 and P.W. 3 thereon, though the seizure list also contains the signature of the appellant which is Ext. 1/6. Exts. 1, 1/1, 1/2 and 1/7 are the signatures on the F.I.R. of the witnesses evidencing the fact of the F.I.R. drawn in their presence. No oral and documentary evidence has been adduced on behalf of the accused. 6. 1/6. Exts. 1, 1/1, 1/2 and 1/7 are the signatures on the F.I.R. of the witnesses evidencing the fact of the F.I.R. drawn in their presence. No oral and documentary evidence has been adduced on behalf of the accused. 6. In view of the oral and documentary evidence on the record the learned court below has found only the appellant guilty for the offence punishable under Section 302/34 of the Indian Penal Code and has convicted and sentenced him as stated above. 7. Assailing the impugned judgment as unsustainable it has been submitted by Sunil Kumar Mahto, learned counsel for the appellant that there is no legal evidence at all on the record for coming to the finding of the guilt of the appellant as the assailant of the deceased and the learned court below did not consider the evidence on the record meticulously in proper perspective and has gravely erred in coming to the finding of the guilt of the appellant and as per the testimony of the P.W. 12, the doctor read with the postmortem report Ext. 5, there appears to be no concatenated relationship between the injuries and the death of the deceased and the doctor has not given any specific cause of the death of the deceased and in this view of the matter the injury alleged to be and found by the doctor on the chest of the deceased is not the cause of the death of the deceased then in that case charge under Section 302 levelled against the appellant falls flat and the learned court below has not considered this aspect of the matter. It has further been contended that there is no means of identification at the place of occurrence where admittedly as per the prosecution case occurrence has taken place between 8.00 P.M. and 9.00 P.M. in the month of November though P.W. 1 and P.W. 4 have stated in their evidence that it was a moonlit night which stands contradicted by P.W. 8 in para 2 and according to him it was a dark night and in this view of the matter the very identification of the appellant as an assailant of the deceased at the place of occurrence is very much doubtful. The further contention of the learned counsel is that P.W. 4 has deposed that at the time of the occurrence P.W. 3, Arjun Hembrum was snatching the knife from the appellant and P.W. 10, Malin Hembrum does not say about that aspect of the matter whereas P.W. 3 in his evidence on oath has categorically deposed that when he reached at the place of occurrence he found that the deceased had died and they have learnt about the occurrence from P.Ws. 10 and 4 and, therefore, the evidence of P.W. 3 contradicts the testimony of P.Ws. 10 and 4 and also gives an indication of the fact that P.Ws. 4 and 10 were definitely not present at the place of occurrence having an occasion to witness the occurrence. Lastly it has been contended that the deceased might have died due to fall somewhere else in the night and due to the enmity which is existing and alive between the parties much prior to the occurrence the appellant has been falsely implicated in this case to wreck vengeance against them. 8. Shri Dhirendra Kumar Prasad, the learned A.P.P. has very fairly submitted that the injury as opined by P.W. 12, the medical witness can never be said to be the cause of the death of the deceased and there is enmity between the parties from before and they are on litigating terms. The learned A.P.P. has also submitted, that according to the prosecution case read with the evidence of P.Ws. 10 and 4, assault has been made on the deceased by the appellant by knife and there is existence of injury on the dead body of the deceased and the knife as per the seizure list Ext. 4, has also been recovered at the instance of the appellant though from the house of one Jitan Soren in the same village which implicates the appellant in the occurrence in question. Lastly it has been submitted that since the injuries is on the chest of the deceased caused by knife and as such the conviction under Section 302 of the I.P.C. may be altered under Section 304 Part II of the I.P.C. in view of the fact that the appellant had come to the house of the deceased and took him in his company with the intention to commit his murder. 9. 9. This is a most unfortunate case of fratricide, the one brother killing the other. The appellant and the deceased are full brothers. There is no denying the fact that both the deceased and the appellant are on litigating terms with each other much prior to the occurrence and several incidents of scuffles have taken place between them and also a proceeding under Section 107 Cr.P.C. prior to the occurrence. It is also an admitted fact that they were living separately having partitioned their properties much prior to the occurrence. In this background of the admitted enmity between the parties we have to scan the evidence of P.Ws. 10 and 4 with due care and caution as they are no other person but the son and widow of the deceased. 10. Before we scrutinize the evidence of P.Ws. 10 and 4 it is pertinent to mention the medical evidence. P.W.12. Dr. Chandra Prakash Bibhakar has deposed to have conducted the postmortem examination on the dead body of Mangal Hembrum the deceased of this case on 7.11.92 at 12.05 hours and has found the following ante mortem injury on the dead body of the deceased : One penetrating wound 1/8" x 1/8" x 1/4" over the left side of chest between the 5th and 6th ribs. The medical witness has further deposed that on dissection no abnormality was detected and viscera's of the deceased was kept for the needful. The medical witness has very categorically deposed in para 3 of his testimony that no definite opinion could be given as the cause of the death of the deceased. The medical witness has not whispered as to whether the injury bearing on the chest of the deceased is sufficient to cause death of the deceased in the ordinary course. The medical witness has also not whispered regarding the nature of the injuries as to whether it is grievous or simple. Therefore, the injury aforesaid can never be said to be the cause of the death of the deceased and the said injury can definitely not be said to be sufficient to cause the death of the deceased in the ordinary course of nature. Therefore there is a big question mark regarding the charge under Section 302/34 being established on this score alone against the appellant. 11. It appears from Ext. Therefore there is a big question mark regarding the charge under Section 302/34 being established on this score alone against the appellant. 11. It appears from Ext. 4 that knife has been recovered at the instance of the appellant from the house of Jitru Soren. It also shows that the said knife has blood stains thereon. The said knife has also been brought on the record as material Ext. I but there is no legal evidence on the record to connect the said recovered knife as a weapon of assault in this case. There is no iota of evidence on the record to establish the fact that this is the said knife which was the weapon of assault in this case. The said knife was also not sent to the serologist for the chemical examination to establish the blood stains thereon having its co-relation with the deceased. Therefore the recovery of knife has no relevancy in this case. Absence of viscera report also caused a cloud of suspicion to the very credibility of the prosecution case regarding the cause of death of the deceased. 12. P.Ws. 10 and 4 have deposed that they had followed the deceased when he was going in the company of the appellant and his wife. Their evidence is further to the effect that when they reached near the house of P.W. 9 Jiwan Hembrum scuffle took place between them and the appellant and his wife felled the deceased on the ground and the appellant gave a knife blow on the chest of the deceased. I have also stated above regarding the material contradictions and discrepancy appearing in evidence of P.W. 4 vis-a-vis P.W. 3. The I.O. has also not found any mark of violence at the place of occurrence. Nothing material has been recovered from the place of occurrence to establish the fact that the occurrence had taken place in front of the house of Jiwan Hembrum as alleged. There is no evidence of any independent, natural and reliable witness of the occurrence to corroborate the testimony of P.W. 4 and P.W. 10 though as per evidence of the prosecution witnesses a large number of persons had collected at the place of occurrence. In view of the admitted enmity between the parties corroboration of the testimony of P.Ws. 4 and 10 is necessary by some other evidence legal and reliable on the record. In view of the admitted enmity between the parties corroboration of the testimony of P.Ws. 4 and 10 is necessary by some other evidence legal and reliable on the record. Therefore, in the facts and circumstances of this case coupled with the enmity existing and alive between the parties prior to the occurrence the uncorroborated testimony of P.Ws. 4 and 10 does not inspire confidence. Therefore, the false implication of the appellant in the facts and circumstances of this case cannot be totally ruled out. The learned court below did not consider the evidence on the record meticulously in proper perspective and has gravely erred' in coming to the finding of the guilt of the appellant. There appears to be no legal evidence at all on the record to show that the injury on the deceased is the cause of the death of the deceased and the nature of that injury was such to cause the death of the deceased in the ordinary course of nature. Therefore, the impugned judgment suffers with illegality requiring an interference therein. 13. There is merit in this appeal and it succeeds. The impugned judgment is hereby set aside. The appeal is thereby allowed. The appellant is not found guilty and he is hereby acquitted. The appellant is hereby ordered to be set free forthwith if not wanted in any other case.