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2003 DIGILAW 404 (JHR)

Nandu Hembram v. State Of Bihar (Now Jharkhand)

2003-03-28

LAKSHMAN URAON, VISHNUDEO NARAYAN

body2003
JUDGMENT Vishnudeo Narayan, J. 1. This appeal has been preferred by the appellants named above against the impugned judgment and order dated 26.5.2000 passed by Shri S.H. Kazmi, 3rd Additional Sessions Judge. East Singhbhum Jamshedpur in S.T. No. 373 of 1997 whereby and where under they were found guilty for the offence punishable under 302, 201 and 120B of the Indian Penal Code and they were convicted and sentenced to undergo RI for life for the offence punishable under Section 302 of the Indian Penal Code. However, no separate sentence was awarded to them for the offence punishable under Sections 201 and 120B of the Indian Penal Code. 2. The prosecution case has arisen on the basis of the fardbeyan (Ext. 8) of PW 14, Kundi Hembram widow of Kanhai Lal Hembram, the deceased of this case recorded by PW 16 ASI, G.M. Ansari of Shyam Sun-darpur PS in the paddy field of Zamadar Hansda in village Bartaulia, PS Chakulia (Shyam Sundarpur), Ghatshila, East Singhbhum at 10.15 hours on 14.10.1996 regarding the occurrence which is said to have taken place in the night between 13th and 14th of October, 1996. The case was instituted on the basis of the formal FIR (Ext. 10) on 14.10.1996 at 16.00 hours and the formal FIR and the fardbeyan aforesaid though alleged to have been despatched from the PS on 14.10.1996 has been received in the Court empowered to take cognizance on 17.10.1996. 3. The case was instituted on the basis of the formal FIR (Ext. 10) on 14.10.1996 at 16.00 hours and the formal FIR and the fardbeyan aforesaid though alleged to have been despatched from the PS on 14.10.1996 has been received in the Court empowered to take cognizance on 17.10.1996. 3. The prosecution case, in brief, is that Kanhai Lal Hembram, the husband of the informant left his house at 17.30 hours on his Rajdoot motorcycle bearing registration No. BR-16A-2741 on 13.10.1996 telling the informant that he will come back to his house by 21.00 hours after making a stroll but he did not return as stated and there was an uproar in the village at about 10.00 oclock in the day on 14.10.1996 that the dead body of Kanhai Lal Hembram aforesaid is lying in the water in the paddy field of Jamadar Hansda and on this information, the informant along with her family members and the co-villagers went there and found the dead body of her deceased husband there having sharp cut injuries on his head and forehead and blood was oozing also from his mouth and his clothes were also found to be torn and it appears that some unknown persons might have committed his murder by sharp cutting weapon and have thrown his dead body in the said field. It is also alleged that the said Rajdoot motorcycle has not been found as yet. The prosecution case further is that the deceased had told the informant about six days ago that he has advanced Rs. 20,000/- to the appellant Kundi Murmu widow of Lapsa Murmu about two years ago for purchasing a 407 Maxi- Taxi and the appellant Kundu Murmu had delivered the said amount to her brother appellant Nandu Hembram @ Bhatar Hembram and a second hand 407 Maxi-Taxi was purchased by them. It is alleged that the deceased was pressing upon them to refund the said amount for the last few days but they were evading the repayment. It is also alleged that the deceased had not told her earlier about the said advancement out of her fear. It is alleged that the deceased was pressing upon them to refund the said amount for the last few days but they were evading the repayment. It is also alleged that the deceased had not told her earlier about the said advancement out of her fear. The prosecution case further is that the informant was always preventing him not to go to the house of the appellant Kundi Murmu and, thereafter, he had disclosed to her that he goes to the house of the aforesaid appellant only with a view to get the aforesaid money back and the deceased had also informed in respect of the demand of the said money to PW 7, Karan Hansda. It is also alleged that the deceased used to take liquor and he used to visit the house of the appellant Kundi Murmu for taking wine and Haria and sometimes he used to stay and sleep in the house of the appellant Kundi Murmu for the night and he had also developed illicit relationship with the appellant Kundu Murmu and he was on visiting terms with the appellant Kundu Murmu for the last three years. It is also alleged that the informant thought that the deceased might have stayed in the house of the appellant Kundu Murmu when he did not return to his house as stated. It is also alleged that she learnt from the villagers that the deceased had gone to the house of the appellant Kundu Murmu at about 10.00 oclock in the night and she has absolute reasons to believe that the appellant Kundu Murmu and her brother Nandu Hembram have committed the murder of the deceased with the help of other person by causing his death by sharp cutting weapon with a view to grab the said amount and they have thrown the dead body in the paddy field with a view to screen themselves from legal punishment. 4. 4. Appellant Nandu Hembram was arrested on 17.10.1996 in course of investigation and he made his confessional statement before PW 15, the IO regarding His participation in the commission of the murder of the deceased along with other two appellant who were also apprehended on that very day from their house in village Pitajori and they have also made their respective confessional statement before PW 15, the IO and in pursuance of the confessional statement of the appellant Madhav Chandra Tudu, the tangi which is the weapon of assault without wooden handle was recovered from a place near Bhalikhal Dam by the side of the river concealed under the earth and seizure list (Ext. 7/2) in respect thereof was prepared in presence of PWs 10 and 11 and the witnesses aforesaid of the seizure put their signatures (Ext. 5 and 5/1) on the seizure list and the appellant Madhav Chandra Tudu also put his signature on the said seizure list and his signature thereon is (Ext. 5/2). The inquest report (Ext. 9) of the dead body of the deceased found in the water filled paddy field of Jamadar Hansda was prepared by PW 16, the IO and PWs 5 and 3 have witnessed the said inquest report and their signatures thereon are Ext. 1 and 1/1. In course of investigation the motorcycle bearing registration No. BR-16A-2741 was recovered. 300 yards sough from the house of PW 1 Haru Naik on 14.10.1996 and seizure list (Ext. 7) was prepared in respect thereof which was witnessed by PW 6, Basia and his signature thereon is Ext. 2. Blood stained earth was also recovered and seized as per Ext. 7/1 from the house of appellant Kundu Murmu as well as from the corner of north western outer wall of her house besides that blood stains were also found on a leaf of a plant 15 yards west from her house in presence of PWs 10 and 11 and their signatures on the said seizure list are Ext. 4 and 4/1 respectively. The deceased of this case is the resident of village Baragarias and all the three appellants are resident of village Pitajori which is 3-4 kilometers away from the house of the deceased. 4 and 4/1 respectively. The deceased of this case is the resident of village Baragarias and all the three appellants are resident of village Pitajori which is 3-4 kilometers away from the house of the deceased. The dead body of the deceased has been recovered from the paddy field of Jamadar Hansda which is in village Bartaulia situate south west from the house of the appellant in village Pitajori. 5. The appellants have pleaded not guilty to the charges levelled against them and they claim themselves to be innocent and to have committed no offence and that they have been falsely implicated in this case. 6. The prosecution has examined in all 16 witnesses to substantiate the charges levelled against the appellants PW 14, Pungi Hembram is the informant and widow of Kanhai Lal Hembram, the deceased of this case PW 5, Meghnath Hembram, PW 7, Karan Hansda, PW 8, Lakshmi Rani Mardi are the son, maternal son- in-law and sister respectively of the deceased aforesaid. PW 10, Shyam Charan Mardi is the husband of PW 8. PW 1. Haru Naik, PW 2, Deola Marmu; PW 3, Lili Murmu @ Hikim Murmu and PW 13, Madhav Chandra Tudu all residents of village Pitajori, PW 4, Rajendra Tudu, PW 6, Pasia Mandal, PW 12, Charu Charan Mardi have taken oath in support of the prosecution cases besides PW 14, PW 5, PW 7, PW 8 and PW 10, PW 11, Dadu Ram Mardi is the witness of the seizure regarding the seizure list (Ext. 7/1) and his signature thereon is Ext. 4/1. PW 9, Dr. Nawal Kishore Sinha has conducted the post mortem examination on the dead body of the deceased and the post mortem report in respect of her his pen is Ext. 3. PW 16, Gul Mohammad An-sari and PW 15, Ram Awadesh Singh are the Investigation Officers of this case. James Peter Lakra, Assistant in the District Transport Office, Jamshedpur has figured as a defence witness and has proved the entries regarding the vehicle Tata 407 being registration No. BR-16-0599 in the Register of motor vehicle which is Ext. A in this case. 7. James Peter Lakra, Assistant in the District Transport Office, Jamshedpur has figured as a defence witness and has proved the entries regarding the vehicle Tata 407 being registration No. BR-16-0599 in the Register of motor vehicle which is Ext. A in this case. 7. The learned Court below after considering the oral and documentary evidence on the record has found and held that though there is no eye witness of the alleged occurrence but the circumstances emanating from the evidence on the record unerringly and conclusively substantiates the guilt of the appellant and all the circumstances in this case are quite inconsistent with the innocence of the appellants and they clearly indicate the involvement of all the accused persons in the commission of murder of the deceased and has convicted all the appellant and sentenced them as stated above. 8. Assailing the impugned judgment it has been submitted by the learned counsel for the appellants that there is no ocular witness of the occurrence in question in support of the prosecution case and the alleged circumstances emanating from the evidence as stated in the impugned judgment do not at all lead unerringly and conclusively to the hypothesis of the guilt of the appellant and the learned Court below did not meticulously scrutinize the evidence on the record and has gravely erred in coming to the finding of the guilt of the appellant. It has been submitted that the prosecution case regarding an advancement of loan of Rs. 20.000/- to the appellant Kundi Murmu for the purchase of 407 Maxi-Taxi to totally false and fabricated and there is total absence of any legal evidence on the record evidencing the fact of advancement of loan aforesaid by the deceased to the said appellant and Ext. A clearly substantiates the fact that the appellant Kundu Murmu or Nandu Hembram have not purchased the Maxi-Taxi bearing registration No. BR-16-0599 as the said vehicle stands registered in the name of Shri Ghajali Khan and, thereafter, transferred to Md. Saud Khan on 23.10.1997 and lastly it stands transferred in favour of Smt. Rani Devi on 16.4.1998 and the aforesaid appellants are not the owner of the said Maxi-Taxi and in view of Ext. A, the prosecution case regarding the deceased going to the house of the appellant Kundu Murmu for making the demand of repayment of loan as alleged is totally false. A, the prosecution case regarding the deceased going to the house of the appellant Kundu Murmu for making the demand of repayment of loan as alleged is totally false. It has further been contended that it is totally false to say that the appellant Kundu Murmu has illicit relationship with the deceased and he was on visiting terms with her where he used to take liquor and also used to stay in the night there. It has also been submitted that the evidence of PW 1, Haru Naik is fit to be discarded in this case and the same is not acceptable in view of the fact that his statement under Section 161 of the Cr PC has been recorded after one month of the occurrence and his conduct after the alleged occurrence is suspicious because he himself has not reported the matter to the police, threw the motorcycle far away and fled away to village Debra in West Bengal and from there as a result of conspiracy he was brought back to the village Pitajori at the instance of Md. Jan who has not taken oath in this case for the reasons best known to the prosecution and furthermore it is equally surprisingly as to how Md. Jan has the information about PW 1, Haru Naik living at" Debra in West Bengal when PW 1 had surreptitiously gone there with a view to conceal himself. In support of his contention reliance has been placed upon the case of Denanath Singh and Anr. v. State of Bihar, AIR 1980 SC 1199 . It has also been submitted that PW 13, Madhav Chandra Tudu had deposed that in the night of the occurrence there was a Mansa Mangal Puja going on at the house of the appellant in which 50-60 persons had participated and this Mansa Mangal Puja had committed for the whole night and in this view of the matter the commission of the murder in the house of the appellant as alleged by the prosecution is highly improbable. It has also been submitted that PW 1 had deposed that the house of the appellant Kundu Murmu is situated after two houses of his house and Shyamsundarpur PS is located in his village Pitajori and there are 6-7 house in between Shyamsundarpur PS and his house. It has also been submitted that PW 1 had deposed that the house of the appellant Kundu Murmu is situated after two houses of his house and Shyamsundarpur PS is located in his village Pitajori and there are 6-7 house in between Shyamsundarpur PS and his house. It is very surprisingly as to why PW 1 did not inform the PS regarding the occurrence when he came to know about the murder of the deceased and this aspect of the matter gives an inkling of the fact that this PW 1 Haru Naik has himself committed the murder of the deceased and has thrown the dead body of the deceased in the field and his motor cycle in the jungle and PW 1, Haru Naik has his key role in falsely implicating the appellant in this case as he has voluntarily gone before the police to make his statement to falsely implicate the appellants. The further contention of the learned counsel for the appellant is that there are material contradictions and inherent inconsistencies in the evidence of the prosecution witnesses regarding the deceased going to the house of the appellant Kundu Murmu and according to PW 1, Haru Naik he had gone to the house of the deceased Kundu Murmu which was not at all noticed by any person but it is surprisingly enough that a large number of persons have deposed falsely to have seen the deceased going to the house of the appellant Kundu Murmu and all these witnesses are chance witnesses purposely set up to falsely implicate the appellant in this got up case. Lastly it has been submitted that the recovered tangi has not been produced before the Court and there is no report of the serologist to establish the fact that the aforesaid tangi having blood stains thereon and the alleged earth containing blood have human blood thereon. Lastly it has been submitted that fardbeyan of the informant was recorded on 14.10.1996 at 10.15 hours and the case was instituted on that very day at 16.00 hours by drawing a formal FIR but it is surprisingly enough that the said fardbeyan and the formal FIR was received in the Court empowered to take cognizance on 17.10.1996 after inordinate and unexplained delay. Elucidating further it has been submitted that the FIR in a criminal case and particularly in the murder case is vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed including the names of the actual culprits and the parts played by them, the weapons, if any, used as also the names of the eye- witnesses, if any, and delay in lodging the FIR often results in embellishment which is a creature of an after thought and on account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. It has also been submitted that the FIR received after inordinate unexplained delay in the Court gives rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded and the facts and circumstances are indicative of the fact that the FIR came to be recorded later on after due deliberation and consultation and it was anti-timed unless, of course, the prosecution can offer a satisfactory explanation for the delay in dispatching or receipt of the FIR by the local Magistrate. It has also been submitted that the IO has categorically deposed that the Court empowered to take cognizance is situated at a distance of 50 kms. from the said PS and it takes one and half hours for going to the Court from the said PS on motor cycle and furthermore Section 157 of the Cr PC casts a duty upon the IO to forthwith send the report of the cognizable offence to the concerned Magistrate and the receipt of the fardbeyan and FIR in the Court empowered to take cognizance on the fourth day of the occurrence makes the very fardbegan as a suspicious document as a result of after thought and deliberation and, therefore, the impugned judgment suffers with legal infirmities as well as material contradictions and is equally unsustainable in law. 9. 9. The learned APP has submitted that though there is no ocular witness of the occurrence but the circumstances emanating from the materials on the record conclusively and unerringly lead to the hypothesis of the guilt of the appellants and there is no infirmity at all in the impugned judgment and the learned Court below has meticulously considered the circumstances of the case and has rightly held the appellants guilty. Elucidating further it has been submitted that there was intimate relationship between the deceased and the appellant Kundu Murmu, an issueless young widow aged about 32 years living alone in the house and the said intimacy has developed into illicit relationship between them and due to that special relationship the deceased has advanced Rs. 20,000/- to her on her request for the purchase Maxi-Taxi and PWs 5, 7, 8 and 10 besides other witnesses have testified the aforesaid fact in their evidence on oath and for the said demand the deceased had gone to the house of the appellant in the fateful night of the occurrence. It has further been submitted that there cannot be any paper of advancement of loan aforesaid due to such intimate relationship between them. There is evidence on the record that on 13.10.1996 the deceased had left his house for going to the house of appellant Kundu Murmu for making demand for repayment of the said loan and PW 1 has accompanied him up to the house of appellant Kundu Murmu where he has seen the deceased along with all the appellants inside the house through the gap of the door in the light of the dhibri and the deceased did not come back to the house of the appellants alive, thereafter, and in the following morning his dead body was found in the paddy field and PW 1 out of fear when he came to know about the murder of the deceased threw the motor cycle in the jungle and fled away to village Debra in West Bengal and the conduct of PW 1 cannot be said to be an unnatural conduct in the facts and circumstances of this case. Thereafter, appellant Kundu Murmu and Nandu Hembram have absconded and on their apprehension from the house of appellant Madhav Chand Tudu, their confessional statement was recorded and in pursuance thereof the tangi which is the weapon of assault was seized in presence of the witnesses and blood stained earth was recovered from the house of the appellant Kundu Murmu and also from the place outside of her house. The materials on the record further establish the fact that the murder of the deceased has taken place only with a view to grab the said Rs. 20,000/- which the deceased has advanced to the appellant Kundu Murmu and the motive for the commission of the murder stands well established in view of the evidence on the record. The aforesaid circumstances, therefore, form a complete chain which unerringly leads to the only hypothesis of the guilt of he appellant. 10. It will admit of no doubt that Kanhai Lal Hembram, the husband of PW 14, Pungi Hembram, the informant has been done to death and his dead body was thrown in the water filled paddy field of Jamadar Hansda in village Bartaulia and there was an uproar in respect thereof in the morning of 14.10.1996 and the informant along with others rushed to that place from her village Baragarias. PW Gul Mohammad Ansari, ASI, Shyamsundarpur PS had reached the said place on rumour regarding the existence of the dead body of a person in the said field where the fardbeyan (Ext. 8) of PW 14 was recorded in presence of PWs 6, 12 and 13. PW 16 has deposed to have prepared the inquest report (Ext 9) of the dead body in the said field at 10.30 hours on that day which was witnessed by PW 5 and PW 13 and their signatures thereon are Ext. 1 and 1/1 respectively and there were incised bleeding wounds of different dimensions on the right cheek, right temple, forehead and near left ear said to have been caused by sharp cutting weapon and his clothes were found torn. The dead body was forwarded to the hospital for autopsy which was conducted by PW 9 Dr. Bimal Kishore Sinha. 1 and 1/1 respectively and there were incised bleeding wounds of different dimensions on the right cheek, right temple, forehead and near left ear said to have been caused by sharp cutting weapon and his clothes were found torn. The dead body was forwarded to the hospital for autopsy which was conducted by PW 9 Dr. Bimal Kishore Sinha. The medical witness has conducted the post mortem examination on the dead body of the deceased on 15.10.1996 at 9.00 a.m. though the dead body was received in the Ghatshila hospital at 7.00 p.m. on 14.10.1996 which is borne by post mortem report (Ext. 3) per pen of the medical witness. The medical witness has deposed to have found the following ante mortem injuries on the dead body of the deceased : (i) Bleeding from left ear (ii) Sharp cutting wound on right side of cheek 2" x 1/2" x 1/2" (iii) Sharp cutting wound on left side of frontal bone 3" x 1/2" x 1/2" (iv) Sharp cutting wound on middle of left side of parietal bone 3" x 1" x brain deep. The medical witness has further deposed that on dissection he has found the fracture of bone with hematoma on brain under injury No. 4 aforesaid. He has also deposed that in his opinion the death has occurred due to shock and hemorrhage because of head injury and all the aforesaid injuries nave been caused by sharp cutting weapon and the time elapsed since death is 36 hours. The evidence of medical witness stands corroborated by post mortem report (Ext. 3) aforesaid. 11. It is relevant to mention at the very outset that there is no ocular witness regarding the commission of the murder of the deceased by the appellants and the case of the prosecution rests squarely regarding the involvement of the appellants in the commission of the murder on the circumstantial evidence emanating as per the testimony of the prosecution witness. It is relevant to mention at the very outset that there is no ocular witness regarding the commission of the murder of the deceased by the appellants and the case of the prosecution rests squarely regarding the involvement of the appellants in the commission of the murder on the circumstantial evidence emanating as per the testimony of the prosecution witness. It is well settled that when a case rests on circumstantial evidence, such evidence must satisfy that the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established and those circumstances should be of a definite tendency unerringly and unmistakably pointing towards the guilt of the accused and the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime has been committed by the accused and none-else. 12. Let us now advert to the evidence on the record in respect thereof. According to the prosecution case as averred in the fardbeyan (Ext. 8), the deceased had illicit relationship with the appellant Kundu Murmu, an issueless widow aged about 32 years who used to deal in illicit sale of liquor and also of haria, living alone in her house at village Pitajori and the deceased was on visiting terms with her in her house where he used to take liquor and haria and also used to Stay in her house with her invariably in the night. PW 14, the informant, PWs 1, 2, 3, 4, 5, 6, 7, 8, 10, 12 and 13 have deposed in their evidence on oath regarding the existence of the illicit relationship between the deceased and the appellant Kundu Murmu. PW 14, the, informant has very categorically deposed in para 2 of her evidence that the appellant Kundu Murmu used to sale liquor and the deceased used to go there frequently for taking liquor there and the deceased had developed illicit relationship with the appellant Kundu Murmu and he often used to stay there for the whole night. PW 1, Haru Naik a resident of village Pitajori has also deposed that the deceased had illicit relationship with the appellant Kundu Murmu and he used to remain in her house for the whole night. PWs 2, 3, 4 and 13 are also the residents of village Pitajori, the village of appellant Kundu Murmu. PW 1, Haru Naik a resident of village Pitajori has also deposed that the deceased had illicit relationship with the appellant Kundu Murmu and he used to remain in her house for the whole night. PWs 2, 3, 4 and 13 are also the residents of village Pitajori, the village of appellant Kundu Murmu. PW 2 has also deposed that the deceased used to go to the house of the appellant Kundu Murmu frequently as he had love affairs with her and sometimes he used to stay in the night with her in her house. Similar is the evidence of PW 3 and he has categorically deposed that he is seeing the deceased for the last three years prior to the occurrence visiting the house of the appellant Kundu Murmu and sometimes he used to stay there for the whole night. PW 4 is a homepathic doctor having his clinic in village Pitajori. He has deposed that the deceased used to go to the house of Kundu Murmu for having wine and the deceased had developed illicit relationship with her and at times he used to stay in the night in the house of Kundu Murmu after taking liquor and sometimes he also used to return from there at late in the night. PW 13 has also corroborated the evidence in respect thereof in his testimony. The other set of witness i.e. PWs 5, 6, 7, 8, 10 and 12 some of them are resident of village Baragarias and others of different villages have also testified in their evidence on oath regarding the fact of the deceased going to the house of the appellant Kundu Murmu for taking liquor and Haria and also staying there with her in the night as the deceased had developed illicit relationship with her. It is, therefore, established conclusively in view of the evidence of the witness referred to above that the deceased had illicit relationship with appellant Kundu Murmu and he used to visit her house for taking wine and he also used to stay there in the night with her. 13. According to the prosecution case as averred in the fardbeyan (Ext. 8), the deceased was going to the house of Kundu Murmu and on protest by the informant he told the informant that he goes to the house of the appellant Kundu Murmu only with a view to get back Rs. 13. According to the prosecution case as averred in the fardbeyan (Ext. 8), the deceased was going to the house of Kundu Murmu and on protest by the informant he told the informant that he goes to the house of the appellant Kundu Murmu only with a view to get back Rs. 20,000/- which he had advanced to appellant Kundu Murmu about two years ago for purchase of a 407 Taxi-Maxi and the appellant Kundu Murmu had delivered that amount to her brother, appellant Nandu Hembram and the second hand 407 Maxi-Taxi was purchased by them. According to the averment in the fardbeyan the deceased had told the informant that he will return by 9.00 oclock in the night from the house of the appellant Kundu Murmu. It is also alleged that the deceased was pressing the appellant Kundu Murmu to refund the said amount for the last few days but she was evading the repayment. It is relevant to mention at the very outset that there is no document to evidence the pay