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2006 DIGILAW 1190 (JHR)

Piru Some Besra v. State Of Jharkhand

2006-09-14

AMARESHWAR SAHAY, DHANANJAY PRASAD SINGH

body2006
JUDGMENT 1. All the appellants stand convicted for the offences under Sections 302/149, 307/149 and 148 of the Indian Penal Code and each sentenced to serve rigorous imprisonment for life, seven years and three years respectively by the Additional Sessions Judge, Pakur in Sessions Trail No. 103 of 1999. However, the sentences were ordered to run concurrently. 2. Brief facts leading to this appeal are that in the morning of 21.9.1998, deceased Parang Hembrom along with his two sons, P.W.5 and P.W. 7, was ploughing land belonging to his wife (P.W.6) Mem Besra situated in Mauza- Pokherya, Manjhee tola, Police Station- Maheshpur, District- Pakur where all of a sudden, the appellants came there armed variously and started assaulting them. According to the prosecution case, the deceased was assaulted with lathi by appellant No. 1 Piru Some Besra on his head while other appellants assaulted P.W.5 and P.W.7. Further stated when the deceased fell down on the ground, appellant No. 1 caught hold of his head and appellant No. 4 Chhode Besra caught hold of his legs, after which appellant No. 3 Ramlal Besra cut the neck of the deceased with the Farsa in his hand. The incident was seen by the informant, who raised alarms on which villagers started assembling, then the appellants fled away. The reasons behind the occurrence is said to be the dispute between the informant and the appellants, who were agnates from her fathers side and the land belonging to her was being claimed by them. It is further stated that the deceased was cultivating the land as Ghar Jamai, a system prevalent in that area of Santhal Pargana. 3. The matter was reported to village Pradhan and further police station, on which the Officer-in-Charge of Maheshpur Police Station, Neyaz Ahmad, arrived at and recorded the statement of P.W.6 in presence of villagers including the village Pradhan (P.W.3). The police further prepared inquest report of the dead body, seized weapons used along with bloodstained soil from the place of occurrence and referred the injured, P.W.5 and P.W. 7, for their treatment. Accordingly, Maheshpur Police Station Case No. 85 of 1998 under Sections 147, 148, 149, 323, 324, 307 and 302 of the Indian Penal Code was registered. The Police after investigation finally submitted charge sheet against all the appellants under Sections 302, 307, 148 and 149 of the Indian Penal Code. Accordingly, Maheshpur Police Station Case No. 85 of 1998 under Sections 147, 148, 149, 323, 324, 307 and 302 of the Indian Penal Code was registered. The Police after investigation finally submitted charge sheet against all the appellants under Sections 302, 307, 148 and 149 of the Indian Penal Code. The cases of the appellants were committed to the Court of Sessions whereas charge was framed against them on 26th of November 1999. The appellants pleaded not guilty and claimed false prosecution at the instance of P.W.3, the village Pradhan. The trial court after examining the witnesses found and held all of them guilty for the offences under Sections 302/149, 307/149 and 148 of the Indian Penal Code and each of them sentenced as stated above. 4. The present appeal has been preferred on the grounds that the learned trial court has relied upon the evidence of interested witnesses and failed to consider that the appellants have been implicated in this case at the instance of P.W.3, the village Pradhan. It has also been stressed before us that in absence of the Investigating Officer of the present case and non-production of the bloodstained soil etc., adverse inference should have been drawn against the prosecution. Mr. D.K. Prasad, learned Counsel for the appellants has submitted strenuously that in the present case where alleged offence took place in the village in broad daylight, independent villagers should have been examined as witnesses. It is also submitted that in absence of the Forensic report of the bloodstained soil, adverse inference should have been drawn against the prosecution. Learned Counsel further submitted that even if the prosecution version is accepted, the participation of appellant Nos. 2, 5 and 6 having common object to cause death cannot be assumed. According to learned Counsel for the appellants, the evidence on record specifically mentioned that these three appellants did not take part in actual commission of the offence under Section 302 of the Indian Penal Code. It is also submitted that all the appellants having remained in custody after their conviction have suffered sufficiently. 5. We have anxiously considered the submissions made on behalf of the appellants along with the materials available on the records. The occurrence is said to have taken place in the morning of 21.9.1998 when the deceased along with P.W. 5 and P.W. 7 was ploughing their lands. 5. We have anxiously considered the submissions made on behalf of the appellants along with the materials available on the records. The occurrence is said to have taken place in the morning of 21.9.1998 when the deceased along with P.W. 5 and P.W. 7 was ploughing their lands. In the present case, there are three eyewitnesses, informant and her two sons, and their presence at the spot could not be disputed because of injuries found on her two sons vide Ext. 2 and Ext. 2/1 proved by P.W. 2 Dr. Gajadhar Mandal, who examined them after 3.00 P.M. on the same day on being referred by police. They were found having injuries on their body with hard and blunt substance. Furthermore, these two witnesses Suleman Hembrom and Bazal Hembrom as P.W.5 and P.W.7 have supported the prosecution version in details. Nothing on record to suggest that they were not present at the time of occurrence. P.W.6 Meru Besra has supported her earlier statement in details and giving a vivid picture regarding the manner in which her husband was confined on the ground by appellant Nos. 1, 3 and 4, after which the neck of the deceased was cut by appellant No. 3. These three witnesses have been cross-examined at length and discussed by the learned lower court vide para-8, 9 and 10 of the impugned judgment. We do not find any contradictions in their consistent version of the prosecution case. We further find no suggestion that there was no dispute between the informant and the appellants regarding the lands belonging to her father. The prosecution has brought on records some rent receipts vide Ext. 7 series regarding the land belonging to her father issued by P.W.3. 6. The prosecution has brought on record the postmortem report of the dead body of the husband of the informant, conducted by P.W.1 Dr. Bindu Bhushan, in which two injuries found on the dead body mention that it has received grievous injuries on head with hard and blunt substance and another injury cutting the neck with sharp cutting weapon, which tally with the description given by P.W.5, P.W.6 and P.W.7. 7. The statement of the prosecution witness Nos. 3 and 4 has further supported the prosecution case. 7. The statement of the prosecution witness Nos. 3 and 4 has further supported the prosecution case. P.W. 4 Haripadh Mirdha is a hearsay witness of the occurrence and he has stated that police has seized bow, lathies and bloodstained clothes in his presence vide Ext. 5 series. P.W.3 has stated that he was informed by the informant regarding the occurrence and went at the place of occurrence to find the deceased lying with serious injuries on the neck and the appellants fleeing away from the place of occurrence. He has explained how he reached at the place of occurrence immediately as his residence was situated after three to four houses near the place of occurrence. His presence could not be denied, as he was present even when the police arrived at the place of occurrence. Furthermore, this witness as village Pradhan was duty bound to maintain the law and order as well as report any such incident to police. The police has arrived at the place of occurrence at about 1.00 P.M. to record the statement of the informant. As such, we find that after receiving information at the Police Station situated at a distance of twenty kilometers, the police arrived immediately and recorded the statement of the informant having no chance of interpolation etc. The prosecution has further examined P.W. 8 S.I. Kamleshwar Mishra, who has submitted the charge sheet He has further proved the fardbeyan recorded by S.I. Niyaz Ahamad as Ext.8 and the endorsement as Ext.9 along with the seizure list and signature of P.W.8 as Ext. 7 series. We do not find that any prejudice has been caused to the defence with non-examination of said Niyaz Ahamd, as no contradiction has been brought on record in the statement of the eyewitnesses of the occurrence. The learned Counsel for the appellants has failed to bring to our notice any material contradiction in the prosecution version and further what prejudice has been caused to the defence with non-examination of the Investigating Officer in the present case. 8. At this stage, learned Counsel for the appellants submitted that even if the prosecution version is accepted regarding death of Parang Hembrom, only appellant Nos. 1, 3 and 4 may be attributed to have caused his death. 8. At this stage, learned Counsel for the appellants submitted that even if the prosecution version is accepted regarding death of Parang Hembrom, only appellant Nos. 1, 3 and 4 may be attributed to have caused his death. It is pointed out that P.W. 5 and P.W. 7 have consistently asserted that only these appellants caught hold of the deceased while his neck was being cut. In such circumstances, appellant Nos. 2, 5 and 6 deserves to be acquitted of the charges under Section 302/149 of the Indian Penal Code. Learned Counsel further submitted that the injuries found on P.W.5 and P.W. 7 were simple in nature, the charge under Section 307/149 of the Indian Penal Code also fails. According to Mr. Prasad, learned Counsel for the appellants, the learned trial court has committed a mistake by convicting all the appellants under Sections 302/149 and 307/149 of the Indian Penal Code without distinguishing their participation in actual offence. Therefore, the conviction of appellant Nos. 2, 5 and 6 under Section 302/149 and 307/149 of the Indian Penal Code deserves to be set aside. 9. This argument appears to have some merit in it. The prosecution witnesses consistently have named all the appellants present at the place of occurrence along with arms. P.W. 5 has asserted that appellant No. 3 Ramlal Besra was carrying Farsa in his hand while appellant No. 5 Dilip Besra was carrying bow and arrows and appellant No. 6 Bablu Marandi was carrying Bhala. Thereafter he mentions that after his father fell down on the ground, appellant No. 1 along with appellant Nos. 3 and 4 cut the neck. He has asserted that he was assaulted by appellant No. 2. P.W.6 similarly asserted that when her husband fell down, appellant No. 1, 3 and 4 caused his death by cutting his neck. P.W.7 has stated like that. Nowhere, they have asserted that appellant Nos. 2, 5 and 6 have also participated in actual commission of murder. Furthermore, we find that the common object of these appellants while assaulting P.W. 5 and P.W. 7 could not have been to cause their death because of the injuries vide Ext. 2 and Ext. 2/1 mentions that they got only three and two simple injures on their persons caused by hard and blunt substance. Therefore, we find that this argument is valid and deserves to be allowed. 2 and Ext. 2/1 mentions that they got only three and two simple injures on their persons caused by hard and blunt substance. Therefore, we find that this argument is valid and deserves to be allowed. However, the evidence available on record proved beyond all reasonable doubts that appellant Nos. 1, 3 and 4 have committed murder of Parang Hembrom in the manner alleged. 10. Having considered the above mentioned facts and circumstances discussed in the foregoing paragraphs; we are of the considered view that the present appeal be dismissed so far as conviction of appellant Nos. 1, 3 and 4 is concerned. Their conviction under Section 302/149 is converted into one under Section 302/34 of the Indian Penal Code and are sentenced to undergo rigorous imprisonment for life. So far as the conviction of all the appellants under Sections 302/149 and 307/149 of the Indian Penal Code is found not maintainable and set aside. However, appellant Nos. 2, 5 and 6 are found guilty for committing offence under Sections 323 and 148 of the Indian Penal Code and sentenced to serve rigorous imprisonment for two years on both counts each. 10. Accordingly, this appeal is disposed of. It is stated that all the appellants have remained in custody after their conviction. The appellant Nos. 2, 5 and 6, if not wanted in any other case, are directed to be set free at liberty at once.