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2006 DIGILAW 823 (JHR)

Babu Ram Mrumu v. State Of Jharkhand

2006-07-11

DILIP KUMAR SINHA

body2006
JUDGMENT D.K. Sinha, J. 1. The present Cr. Revision has been preferred by the petitioners herein against the judgment passed in Cr. Appeal No. 64/94 by the Additional Sessions Judge, F.T.C., Dumka whereby and whereunder the judgment and order of sentence passed by Shri N.K. Gupta, Judicial Magistrate, 1st Class, Dumka in G.R. case No. 46/1990 corresponding to T.R. No. 513/04 dated 18.5.1994 was upheld. The petitioners were held guilty by the trial Court and were sentenced to undergo rigorous imprisonment for two years under Section 452, IPC each and imprisonment for 3 months for their conviction under Section 323, IPC to run concurrently. 2. The prosecution story in brief is that the informant while was sleeping in the night on 15.1.1990 he heard the noise of breaking his door and no sooner did he arrive at the door, as many as five named accused including the petitioners entered in the house, variously armed, to which the informant resisted. Disclosing the motive to the informant they declared that his wife was witch and that they would kill her. On the resistance there being made, it is alleged that the petitioner No. 1 Babu Ram Mrumu inflicted blows with his stick to the informant and sustaining Injury he escaped. When the wife and daughter of the informant appeared at the scene, all the five accused assaulted them and removed Rs. 4,000/- as well as a silver chain and on the arrival of the villagers, on hearing alarm, all the accused escaped. On the statement of informant Jarmundi P.S. Case No. 6/90 was lodged and after investigation the police submitted charge-sheet under Sections 452, 323, 341 and 34, IPC against three accused persons. The other two accused Badan Murmu and Mushi Soren though were named in the FIR but not sent up for trial in the charge-sheet. The cognizance of the offence was taken under Sections 452, 323, 341 and 34, IPC. 3. Although 6 witnesses were produced and examined on behalf of the prosecution. PW 1 Parmanand Mandal proved FIR (Ext. 1) and paragraph 7 of the case diary (Ext. 2). PW 2 Budhni Tudu is the wife of the informant and eye- witness of the occurrence who deposed that she was assaulted by the accused persons. PW 3 Fulmani Kisku is the daughter of the informant as well as an eye- witness and was a victim of assault. 1) and paragraph 7 of the case diary (Ext. 2). PW 2 Budhni Tudu is the wife of the informant and eye- witness of the occurrence who deposed that she was assaulted by the accused persons. PW 3 Fulmani Kisku is the daughter of the informant as well as an eye- witness and was a victim of assault. PW 4 Pani Soren and PW 5 Lakhan Kisku are the sons-in-law having claimed to be the eye-witnesses of the occurrence and PW 6 Lilmuni Kisku is one of the daughters of the informant as well as wife of PW 4 Pani Soren and she has also claimed to be the eye-witness of the occurrence. 4. The learned counsel for the petitioners pointed out that charge framed against the petitioners was amended by the order dated 18.10.1994 by introducing additional charge under Section 380, IPC and thereafter the prosecution witnesses already examined were recalled and further cross-examined. 5. Advancing his argument learned Counsel for the petitioners submitted that in the present case no independent witness was examined on behalf of the prosecution and that all the witnesses except PW 1 were inmates of the house and therefore, interested witnesses, not at all reliable to sustain the conviction of the accused-petitioners. The Investigating Officer was also not examined in this case and, therefore, the petitioners are highly prejudiced for his non- examination and on this score alone the impugned judgment and order are liable to be set aside. Similarly, there was Inordinate delay in lodging the case which has not been explained. The occurrence took place in the night intervening 15/ 16.1.1990 at the distance of about 10 k.ms. from the police station but the case was registered on 16.1.1990 which was received in the Court of CJM on 17.1.1990. The next point which has been raised that the petitioners as alleged with two others had entered into the house of the informant after breaking open the door but there was no seizure list of the broken door, the absence of which belies the entire prosecution story. He further submitted that the trial Court below relied upon the materials in the case diary and allowed the paragraph 7 of the case diary to be proved Ext. 2 by a constable (PW 1) against the provisions of the Evidence Act. He further submitted that the trial Court below relied upon the materials in the case diary and allowed the paragraph 7 of the case diary to be proved Ext. 2 by a constable (PW 1) against the provisions of the Evidence Act. Though the charge under Section 380, IPC was famed at the belated stage of the trial and conviction was also sustained therein but the learned appellate Court did not find it proved and hence the conviction of the appellant-petitioners under Section 380, IPC was set aside. 6. Learned Counsel finally submitted that in case when part of the prosecution story is believed and part thereof is disbelieved, it is trite law that benefit of doubt goes to the accused and in the present case the petitioners have been denied such benefit. 7. Having heard the learned Counsel for the petitioners as well as the learned APP and perusal of the materials on record, I find that the evidence of the prosecution witnesses have been well discussed and the findings are based upon the materials. It is evident that PW 2 and PW 3 were the victims as well as the eye-witnesses of the occurrence. PW 4, PW 5 and PW 6 were also present at the time of occurrence having claimed to be the eye-witness. All the witnesses aforesaid are consistent about the participation of the petitioners therein for the alleged offence. PW 2 Budhni Tudu is the material witness in the present case on the point of her assault by the petitioners and he deposed the theft of her silver chain as well as cash of Rs. 4,000/- supported by PW 3 Fulmani Kisku. 8. The learned appellate Court below discarded the evidence of the prosecution witnesses on the charge under Section 380, IPC on the ground that the fact of theft of Rs. 4,000/- from the basket as well as allegation of removing chain made of silver for the first time was narrated in the Court but not before the Mukhia, Sarpanch or village Chawkidar, first point in time and hence not reliable. It was not a fact that the part of the charges was believed and partly disbelieved rather the charge under Section 380, IPC was not proved hence the argument of the petitioners that in such circumstances the entire allegation should be discarded is not sustainable. 9. It was not a fact that the part of the charges was believed and partly disbelieved rather the charge under Section 380, IPC was not proved hence the argument of the petitioners that in such circumstances the entire allegation should be discarded is not sustainable. 9. The judgment passed in Cr Appeal No. 64/1994 by the 3rd Additional Sessions Judge, Dumka maintaining and upholding the conviction of the petitioners under Sections 452/323/34, IPC does not call for interference by this Court in Revision. The motive of the petitioners is reflected as it appears from the evidence of PW 2 that they had come to commit murder pronouncing her as a witch and pursuant to that they assaulted her and other witnesses, therefore, keeping in view the fast increasing incidents of atrocities of similar nature on women especially tribal women having been noticed, I do not feel lenient view is required to be taken in the present case as against the petitioners and hence keeping in view the gravity of the offence and the motive of the petitioners behind such offence which has been proved by the Courts below they do not deserve benefit under the Probation of Offenders Act. Before I part with the order, I observe that the non-examination of Investigating Officer in the present case has in no manner prejudiced the defence of the petitioners. It is settled law that when certain omission, commission or development are found in the evidence of the prosecution witnesses in course of trial, in that case the evidence of the IO is essential for attracting his attention towards the statement of the witnesses recorded under Section 161, CrPC but in the present case the defence failed to point out such omission, commission or development in the evidence of any of the prosecution witnesses for the charge under Sections 452/323, IPC and, therefore, non-examination of the Investigating Officer has in no manner prejudiced the petitioners. For the reasons stated above, I do not find merit in the present Revision Petition and hence conviction of the petitioners Babu Ram Murmu, Rubi Lal Murmu and Lakhi Ram Murmu under Sections 452/323 and sentence thereof is upheld and accordingly the judgments and the order passed by the Courts below is maintained. 10. This Cr. Revision Petition is dismissed. Revision dismissed.