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2007 DIGILAW 407 (JHR)

Gopnath Murmu v. State of Bihar (Jharkhand)

2007-05-08

D.G.R.PATNAIK, D.K.SINHA

body2007
Judgment D.K. Sinha, J.- The present jail appeal has been preferred by the appellant, Gopnath Murmu against the judgment of his conviction under section 302 of the Indian Penal Code and order of sentence of rigorous imprisonment for life passed by the learned Sessions Judge, Sahibganj in Sessions Case No. 117 of 1994. 2. The prosecution story as it stands narrated in the statement (Fardbeyan) of the informant, Chandrai Tudu (P.W. 4) was that on 21.9.1993 at about 8. p.m. he was apprised by his co-villager Matal Murmu (P.W. 10) that his son was done to death by the appellant, Gopnath Murmu by assaulting him with Kudali. On such information, the informant and his wife immediately rushed and arrived at the door of the appellant, Gopnath Murmu where he found his son Manjhi Tudu lying dead and the villagers assembled there. There was bleeding from the scalp of the deceased and a Kudali was lying near the dead body. The villagers apprised him that with the said Kudali Gopnath Tudu had committed murder and escaped. The neighbours of the appellant viz. Kisto Hembram (P.W. 6) and Munshi Hembram (P.W. 5) explained that they had heard altercation and exchanges of abuse between the two and in the same sequence Manjhi Tudu screamed to save him, as Gopnath Murmu was assaulting him. When both the Witnesses came out, they found the appellant running away from the place of occurrence and that Manjhi Tudu was lying dead. The fardbeyan was recorded in the same night on 22.9.1993 at about 2 p.m. giving rise to Barhait P.S. Case No. 46 of 1993 which was registered for the offence under section 302 of the Indian Penal Code. The police, after investigation submitted charge-sheet for the said offence and accordingly the charge was framed against the appellant for committing murder by intentionally or knowingly causing death of Manjhi Tudu. 3. As many as 10 witnesses were produced and examined on behalf of the prosecution. Besides, the prosecution proved the FIR-Ext. 1, Fardbeyan (Statement)-Ext. 2, Inquest report of the deceased-Ext. 3, Signature of the inquest witnesses, Golhai Tudu (P.W. 3)-Ext. 3/1, Signature of Babu Ram Murmu (not examined)-Ext. 3/2 and post mortem report prepared by Dr. Ajit Niranjan (P.W. 12)-Ext. 4. The defence of the appellant before the trial court was specific denial of charge of murder of Manjhi Tudu. 4. P.W. 1 Md. 2, Inquest report of the deceased-Ext. 3, Signature of the inquest witnesses, Golhai Tudu (P.W. 3)-Ext. 3/1, Signature of Babu Ram Murmu (not examined)-Ext. 3/2 and post mortem report prepared by Dr. Ajit Niranjan (P.W. 12)-Ext. 4. The defence of the appellant before the trial court was specific denial of charge of murder of Manjhi Tudu. 4. P.W. 1 Md. Sufi Alam is the formal witness who proved the formal FIR in the pen and signature of the Officer Incharge of Barhait police station which was marked Ext. 1. He expressed his ignorance about the fact of the case. The statements of the P.W. 2 Lokshman Pd. Rai is also formal in nature who testified the Fardbeyan (statement) of the Informant in the pen and Signature of S.I.L.B. Ram which was marked Ext. 2. P.W. 3, Golhai Tudu proved the inquest report of the deceased (Ext. 3). 5. P.W. 4 (Chandrai Tudu) is the informant of the case who testified that his son Manjhi Tudu was killed by the appellant, Gopnath Murmu but he could not see as to how he was killed. He was informed by Matal Murmu (P.W. 10) that his son was killed by the appellant and the fact was supported by the other witnesses Kisto Hembram (P.W. 6) and Munshi Hembram (P.W. 5). He further testified that on alarm, he went to the place of occurrence and found the appellant running away. Kudali was also there, with the help of which murder was committed. In the same night he went to the police station, delivered his statement before the police which was recorded, read over to him and he put his thumb impression. He identified the appellant in Dock. In the cross-examination he admitted having not seen the occurrence rather the occurrence Was narrated to him by Khara Murmu (not examined), Matal Murmu (P.W. 10), Kisto Hembram (P.W. 6) and Munshi Hembram (P.W. 5). 6. P.W. 5 Munshi Hembram is an important witness who testified that at the time of sunset he heard alarm of Manjhi Tudu who was crying that the appellant, Gopnath Murmu was assaulting him. Soon after hearing alarm, when he went to the place of occurrence he found Manjhi Tudu lying with the injury in his head caused by Kudali and that Kudali was also lying there. He spotted the appellant running away from the place of occurrence to whom he identified. Soon after hearing alarm, when he went to the place of occurrence he found Manjhi Tudu lying with the injury in his head caused by Kudali and that Kudali was also lying there. He spotted the appellant running away from the place of occurrence to whom he identified. He further testified that an attempt was made to apprehend the appellant but he escaped as it was night. The father and mother of Manjhi Tudu (deceased) came at the place of occurrence but he did not convey to them but he admitted that other witnesses including Matal Murmu (P.W. 10) had come there. He identified the appellant in the dock. In the cross-examination the witness testified that house of the appellant was opposite his house across the road surrounded by 4/5 houses but he could not name the occupants of those houses. He further testified that at the time of hearing alarm there was darkness. Though it was the market day but movement on the road was stopped. He admitted having not seen Manjhi Tudu falling on the earth rather, when he arrived at the scene he found the dead body lying. He heard cry of only one person and on hearing alarm the other witnesses also arrived there. He claimed his visibility in the night upto 25 steps. 7. P.W. 6 Kisto Hembram testified that while he was taking his food in the night, he heard loud voice "Killing me, Killing me" and it was the voice of Manjhi Tudu. Manjhi was screaming that appellant, Gopnath Murmu was assaulting but he did not come out on hearing alarm. 8. P.W. 7 Basi Hembram is the mother of the victim. She testified that her son Manjhi was killed by the appellant, Gopnath Murmu with a kudali. To be more specific, she deposed that while chewing Tobacco, Gopnath Murmu (appellant) committed murder of her son with the help of Kudali. Though she alongwith others witnessed the occurrence but the appellant could not be apprehended. She further testified that occurrence was witnessed also by Pargan Besra (P.W. 8). The house of the appellant was at the distance of 150 yards. In the cross-examination she admitted that occurrence was communicated to her by Matal Murmu (P.W. 10) at her home and on such information she went to the place of occurrence where villagers had assembled who narrated the occurrence to her. 9. The house of the appellant was at the distance of 150 yards. In the cross-examination she admitted that occurrence was communicated to her by Matal Murmu (P.W. 10) at her home and on such information she went to the place of occurrence where villagers had assembled who narrated the occurrence to her. 9. P.W. 8, Pargan Besra testified that he came out on hearing alarm of "Mar-dia, Mar-dia", and that Manjhi Tudu was killed by Gopnath Murmu in his home with the help of Kudali. On alarm there being raised by Manjhi Tudu, he rushed there and spotted the appellant assaulting the deceased and when he came forward to apprehend, Gopnath Murmu escaped. He further testified that house of the appellant, Gopnath Murmu was situated by the side of his house. In the cross-examination, the witness deposed that occurrence of assault took place a year ago and his wife had communicated the occurrence to him. At that time it was night, the place of occurrence was across the road opposite his house and he spotted the appellant from his courtyard. But in his concluding testimony the witness deposed that he was sleeping at the time of occurrence and he could not see the event of assault. 10. P.W. 9 Mugli Murmu in her testimony claimed to be an eye witness of the occurrence. She testified that the house of the appellant, Gopnath Murmu was opposite to her house across the village lane. The occurrence of assault took place a year ago and 'the appellant, Gopnath Murmu killed Manjhi Tudu restraining him with the help of Kudali on his head and escaped. The other witnesses also arrived there who witnessed the appellant running away and also spotted the occurrence which took place and it was dusk. She could not measure the distance between her house and the house of the assailant. On hearing hulla she went to the place of occurrence and witnessed the appellant assaulting Manjhi Tudu, she could not clarify as to who had raised alarm. She arrived at the spot and other witnesses also assembled there. She denied the suggestion that it was not a fact that the accused had not assaulted the deceased and she deposed false evidence and that she herself had seen the occurrence. 11. P.W. 10 Matal Murmu is an important witness but he was declared hostile at the instance of the prosecution. She denied the suggestion that it was not a fact that the accused had not assaulted the deceased and she deposed false evidence and that she herself had seen the occurrence. 11. P.W. 10 Matal Murmu is an important witness but he was declared hostile at the instance of the prosecution. Yet in the cross-examination he admitted having heard alarm that Gopnath Murmu (appellant) had committed murder of Manjhi Tudu. Upon such alarm he went to the house of the informant Chandrai Tudu and informed that Manjhi Tudu was killed by Gopnath Murmu. Then he alongwith the father and mother of Manjhi Tudu came to the place of occurrence and found Manjhi lying dead. 12. P.W. 11 Lal Bihari Ram is tile Investigating Officer of the case. He testified that on 22.9.1993 while he was posted at Barhait police station received information at about 1 .30 hours, and pursuant to that he alongwith the police party went to the place of occurrence at village Dariyapur, Koyatola, where he recorded the fardbeyan of the informant. Chandrai Tudu (Ext. 2). He prepared the inquest report (Ext. 3) in presence of the witnesses. He provide the signatures of the witnesses-Ext. 3/1 and 3/2 on the inquest report. The dead body of Manjhi Tudu was sent to Sadar Hospital for post mortem, examination. He visited the place of occurrence, seized the blood stained earth and recorded the statement of the witnesses. Describing the place of occurrence this witness testified that the place of occurrence was the vacant land situated opposite the house of the appellant at Dariyapur Koyatola where he found the dead body of Manjhi Tudu and blood was spread over the earth. He found the Kudali by side of the dead body. Describing the boundary the witness testified that in the east of the place of occurrence there was a village lane and a plum tree and also the house of Pargan Besra across the road. In the west there was house of village Chowkidar, Lakhan Murmu. House of Arjun Murmu was situated in the north and towards south there was house of the appellant (Gopnath Murmu). After investigation he submitted charge-sheet and admitted having not recorded statement of Sulhai Tudu. In the west there was house of village Chowkidar, Lakhan Murmu. House of Arjun Murmu was situated in the north and towards south there was house of the appellant (Gopnath Murmu). After investigation he submitted charge-sheet and admitted having not recorded statement of Sulhai Tudu. When his attention was drawn towards the statement of the P.W. 10 Matal Murmu, the Investigating Officer admitted that Matal Murmu in his statement recorded under section 161 Cr.P.C. had narrated that he heard alarm that Gopnath Murmu had committed murder of Manjhi Tudu and thereafter he went to inform the parents of the deceased and that people assembled there apprised him that appellant had committed murder. He arrived at the place of occurrence within half hour at about 2 O'clock, covering the distance of about 6 K.M. to the village lane which was situated at the distance of 4/5 yards from the place of occurrence and he recorded the statement of Matal Murmu at the place of occurrence itself. He admitted having recorded the statement of Munshi Hembram (PW 5) who stated that when he arrived at the place of occurrence on hearing alarm he found the dead body of Manjhi Tudu lying there. 13. PW 12, Dr. Ajit Niranjan held the post mortem examination of Manjhi Tudu on 22.9.1993 at about 5.30 p.m. and found following:- (i) Rigor mortis was present in all limbs, (ii) One lacerated wound 1" x 1/2" X 1/2" on right side scalp, (iii) Bleeding from right ear also seen. . On dissection:- fracture of the right parietal bone detected. Meninges were torn. Brain material ruptured. Death was caused due to head injuries, may be possible by hard and blunt substance like Kudal by back portion of Kudal. Time elapsed since death was assessed within 24 hours. In cross-examination he admitted that injury No.2 was possible by Kudal or rod. 14. Mr. G.C. Sahu, the learned, Amicus Curiae, submitted that no prosecution witness has claimed having seen the alleged occurrence and involvement of the appellant, Gopnath Murmu in the commission of murder of Manjhi Tudu. By the time the witnesses• arrived at the scene they found Manjhi Tudu lying dead on the earth and a spade (Kudal) near the dead body. No evidence of previous enmity has been brought on the record between the appellant, Gopnath Murmu and the deceased Manjhi Tudu so as to infer the motive. By the time the witnesses• arrived at the scene they found Manjhi Tudu lying dead on the earth and a spade (Kudal) near the dead body. No evidence of previous enmity has been brought on the record between the appellant, Gopnath Murmu and the deceased Manjhi Tudu so as to infer the motive. Even none of the witnesses claimed having heard the voice of the assailant though some of the witnesses admitted that there was exchange of abuses. The occurrence took place in the night at about 8 p.m. in the village without street light and the witnesses are conspicuously silent about the source of light for identification of the assailant. The learned Amicus Curiae exhorted that lacerated injury with the small dimension 1" x 1/2" X 1/2" found on the right side of scalp of the victim cannot be caused by the spade (Kudal). Admittedly the informant P.W. 4, Chandra Tudu and P.W. 7 Basi Hembrom i.e the parents of the victim arrived at the scene in. pursuance to the communication made to him by Matal Murmu and they did not witness the occurrence. Though P.W. 7 Basi Hembram beyond what she narrated under section 161 Code of Criminal Procedure has claimed that she had seen the occurrence but the appellant could not be apprehended, but her such statement can be discarded as she presented this fact for the first time in court by way of development made. Her statement is not reliable also in the back drop that she arrived at the scene with her husband (informant) P.W. 4, Chandrai Tudu and P.W. 10 Matal Murmu. Chandra Tudu in his testimony though claimed that he witnessed the appellant running away from the place of occurrence but this fact has not been corroborated by the P.W. 10, Matal Murmu who had been to inform both the P.W. 4 and P.W. 7 and returned with them. Matal Murmu, P.W. 10 has testified that he had simply heard alarm that the appellant had committed murder of Manjhi Tudu and that he did not see the occurrence. Matal Murmu, P.W. 10 has testified that he had simply heard alarm that the appellant had committed murder of Manjhi Tudu and that he did not see the occurrence. The distance of the informant was about 150 yards from the place of occurrence where the dead body of Manjhi Tudu was lying and the assailant cannot wait for the arrival of the witnesses including the parents of the deceased to come after covering a long distance to see the offence of murder alleged to be committed by the appellant. The trial court therefore, on erroneous consideration held the appellant guilty of the charge of murder of Manjhi Tudu. Similarly, the statements of P.W. 6 Kisto Hembram and P.W. 8 Pargan Besra are not reliable who claimed having seen the appellant running away after assaulting Manjhi Tudu without disclosing the source of light in the night of about 8 O'clock. 15. On the other hand, Mr. A.B.Mahato, learned' A.P.P. submitted that even if the statements of P.W. 4 Chandrai Tudu (informant), his wife (P.W. 7) Basi Hembram and P.W. 10 Matal Murmu are discarded not being the eye witnesses the other witnesses viz. P.W. 5 Munshi Hembram, P.W 6, Kisto Hembram and P.W. 8 Pargan Besra are consistent in their statements that on hearing alarm there being raised by Manjhi Tudu they rushed to the place of occurrence and witnessed the appellant assaulting the victim Manjhi Tudu with the spade. P.W. 9 Mugli Murmu has in very clear words testified that she witnessed the appellant assaulting the victim with Kudal (spade). The learned APP exhorted that all the four witnesses stood to the test of their cross-examination and nothing could be elicited to discard their testimony and their statements inspire confidence. The learned trial court below relying upon the testimony of these four witnesses rightly convicted the appellant for the charge under section 302 of the Indian Penal Code which does not call for interference. The spade (Kudal), which was used in the assault, was seized by the police from near the dead body and in the opinion of Dr., who held the post mortem examination, the injury on the scalp of the victim was caused by the hard and blunt object might be from the back portion of the Kudal which caused fatal injury. 16. 16. Upon careful consideration of the materials on record and perusal of the impugned judgment, we find that the occurrence took place at about 8 p.m. on 21.9.1993 and it was reported to the police in the same night at Barhait police station at 7.30 a.m. on 22.9.1993. The column-2 of the FIR finds mentioned the distance 6 k.m. between the place of occurrence at village Dariyapur and the police station. We do not find therefore, delay in lodging the FIR at the police station by the informant leaving room for deliberation and consultation. 17. In his fardbeyan rerorded first point in time, in the near proximity of the occurrence, the informant (P.W. 4) narrated that he was communicated by Matal Murmu (P.W. 4) at his home that his son Manjhi Tudu was done to death by the appellant-co-villager, Gopnath Murmu with the help of the Spade (Kudal).Upon such information he alongwith his wife, Basi Hembram (P.W. 7) came to the place of occurrence and witnessed his son, Manjhi Tudu lying dead opposite the door of the house of the appellant. There was bleeding from his scalp and Spade (Kudal) was lying by the side of the dead body. The witnesses assembled at the scene, apprised him that the appellant committed murder with the help of the Spade (Kudal). The neighbours of the appellant such as Kisto Hembram (P.W. 6) and Munshi Hembram (P.W. 5) present at the scene narrated the sequence of the occurrence that on hearing alarm of the victim including exchange of abuses with the appellant when they appeared there, witnessed that the appellant was running away after committing murder of Manjhi Tudu. From the sequence of the narration in the fardbeyan which was recorded first point in time we• are of the firm belief that neither the informant, Chandra Tudu (P.W. 4) nor his wife, Basi Hembram (P.W. 7) is the eye witness of the occurrence. Yet Basi Hembram P.W. 7 has made substantial development in her testimony before the trial court by deposing that when she arrived at the scene with her husband P.W 4 and Matal Murmu (P.W. 10) she found the appellant running away from the scene of the occurrence. Yet Basi Hembram P.W. 7 has made substantial development in her testimony before the trial court by deposing that when she arrived at the scene with her husband P.W 4 and Matal Murmu (P.W. 10) she found the appellant running away from the scene of the occurrence. But Matal Murmu (P.W. 10) did not support having seen the occurrence who was later on declared hostile by the prosecution and therefore, their statements do not inspire confidence in so far as involvement of the appellant is concerned in the murder of Manjhi Tudu. They have simply supported that they found the dead body of Manjhi Tudu with the bleeding injury on his scalp opposite the door of the house of the appellant and a spade (Kudal) was lying by the side of the dead body. 18. On the other hand, upon critical analysis of the statements of the witnesses viz., P.W. 5, Munshi Hembram, P.W. 8, Pargan Besra and P.W. 9 Mugli Murmu, we find that these witnesses are consistent that having heard alarm and cry of Manjhi Tudu in the sequence of interaction and exchange of abuses when they came out being the neighbours of the appellant, they witnessed the appellant assaulting Manjhi Tudu with the Spade (Kudal) who escaped. 19. The post mortem examination of the body of Manjhi Tudu was held by Dr. Ajit Niranjan (P.W. 12) on 22.9.1993 itself at 5.30 p.m. who found one lacerated wound 1" x 1/2" x 1/2" on the right side of the scalp. On dissection of skull the witness found fracture of the right parietal bone and meninges torn. He further found that brain materials were ruptured and death was caused due to head injury, possible by hard and blunt substance like the back portion of the Spade (Kudal). The time elapsed since the death was assessed within 24 hours. In the cross-examination the witness was of the opinion that the injury of the scalp could be caused either by weapon like spade (Kudal), rod etc. 20. The statement of the appellant was recorded under section 313 of the Code of Criminal Procedure by putting the incriminating materials collected in course of the trial but the appellant simply denied his guilt and declined• to adduce defence witness. He did not take any plea of his false implication in his defence or otherwise so as to attract conscious consideration. 21. He did not take any plea of his false implication in his defence or otherwise so as to attract conscious consideration. 21. In view of the facts and circumstances referred to hereinabove we find that the appellant Gopnath Murmu inflicted injury on the scalp with the back (blunt) portion of Kudal (spade) causing death of Manjhi Tudu in the night of 21.9.1993 at about 8 O'Clock. The witnesses were consistent that a Kudal was found lying near the dead body and though this fact was mentioned in the objective finding of the Investigating Officer but it was not produced as the material exhibit before the trial court. We find that the attack or assault was not made all on a sudden by the appellant. Rather, it was preceded by quarrel and exchange of abuses. We further find that unconventional weapon "Kudal" which is an agricultural equipment was used in such assault which indicates that the appellant was not predetermined to cause death which comes within the category of culpable homicide not amounting to murder. But at the same time we are of the firm view that the appellant was conscious and had knowledge the blow from the back (blunt) portion of Kudal on the scalp of Manjhi Tudu may cause fatal injury. Therefore, the offence comes within the mischief of Section 304 Part-I of the Indian Penal Code and accordingly the conviction of the appellant Gopnath Murmu is modified. We are inclined to meet the ends of justice by modifying his sentence from rigorous imprisonment for life to 10 years (ten years) rigorous imprisonment. 22. With such modification in conviction and sentence passed against the appellant, Gopnath Murmu by the learned Sessions Judge, Sahibganj in Sessions Case No. 117 of 1994 this appeal is dismissed in the manner indicated above. Let Gopnath Murmu be released forthwith in this case if he has served out modified period of sentence. Let a copy of this judgment be communicated to the court concerned at once. D.G.R. Patnaik, J.-1 agree.