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2007 DIGILAW 498 (JHR)

Som Hembrom v. State Of Jharkhand

2007-06-22

DABBIRU GANESHRAO PATNAIK, DILIP KUMAR SINHA

body2007
JUDGMENT D.G.R. Patnaik, J. 1. The appellant was charged with, tried and convicted for offences under Section 302 of the Indian Penal Code, by the learned Additional Sessions Judge, Rajmahal in Sessions Trial No. 190 of 1998 and was accordingly sentenced to undergo life imprisonment. 2. The gist of the charge is that on 2.3.1998, the appellant had killed his own wife, namely, Hopenmai Murmu at his own house situated at village Khokhrotola, P.S. Rajmahal within the District of Sahibganj. 3. The case was registered on the basis of the fardbeyan (Ext. 3) of the informant Shibu Murmu (PW 6) recorded at 2.45 p.m. on 3.3.1998. Formal FIR was however drawn and the case was registered on 4.3.1998. After recording the fardbeyan, the police officer had conducted inquest in respect of the dead body of the deceased and prepared inquest report in presence of the witnesses whereafter he forwarded the dead body to the hospital for post-mortem examination. Autopsy was conducted by Dr. N.K. Jha (PW 5) on 4.3.1998. The observation which he made while conducting post-mortem examination was recorded by him in the post-mortem report (Ext. 1) which mentions the following ante- mortem injuries found on the dead body of the deceased: (i) lacerated wound on upper lip measuring 1/2" x 1/2" x 1/2"; (ii) lacerated wound over left temporal scalp 3" x 1/2" scalp deep; (iii) lacerated wound over left temporal scalp 2-1/2" x 1/2" x scalp deep; (iv) lacerated wound over right scalp 2-1/2" x 1/2" scalp deep; (v) multiple fractures on skull; (vi) haemorrhage and clot inside brain substance was found on dissection; The above noted ante-mortem injuries, in the opinion of the doctor, were caused by hard blunt substance and death of the deceased was caused on account of haemorrhage inside the skull due to injury Nos. (v) and (vi) which were sufficient in the ordinary course of nature to cause death of the deceased. The doctor had further opined that time elapsed since death till post-mortem examination was within twenty four hours. 4. (v) and (vi) which were sufficient in the ordinary course of nature to cause death of the deceased. The doctor had further opined that time elapsed since death till post-mortem examination was within twenty four hours. 4. The prosecution case is that on 3.3.1998 at about 11.00 a.m. when the informant Shibu Murmu (PW 6) was at his house, one Tala Hembrom (PW 8) came to him and informed that his brother-in-law (Som Hembrom) had brutally assaulted his wife, Hopon Mai Murmu and had brought her to his (Tala Hembroms) house at 11.00 p.m. in the night and after sometime, she had died. He also informed that the villagers had caught hold of Som Hembrom (appellant) and had detained him. On this information, the informant Shibu Murmu (PW 6) went to the house of the village Headman Jhore Hembrom at village Khokhro Tola where he saw the dead body of his sister. The appellant Som Hembrom was also present there whom the villagers had detained. The police arrived and recorded his fardbeyan. 5. The appellant had denied the charge pleading not guilty and claimed that he has been falsely implicated at the instance of Tala Hembrom who was on inimical terms with him. He has also pleaded that he had, in fact, gone to attend a fair and on his return at about 10.00 p.m. in the night, he found his wife lying in a seriously injured condition and he had also found that lock of the box kept in his house, was broken and cash kept therein was stolen. Thereafter, he went to the village pradhan carrying his injured wife but instead of offering any assistance, Tala Hembrom who happens to be the son of the village pradhan, had implicated the appellant, on false allegation. 6. At the trial, as many as nine witnesses were examined. They included the informant (PW 6), Dr. Niranjan Kumar Jha (PW 5) who had conducted post-mortem examination on the dead body of the deceased, and the material witness Tala Hembrom (PW 8) who is stated to have conveyed information about the occurrence to the informant. Two witnesses, namely, Alu Hembrom (DW 1) and Chhotu Hembrom (DW 2) were examined on behalf of the defence. 7. Out of the several witnesses examined by the prosecution, three of them, namely, PWs 1 to 3 were declared hostile by the prosecution. Two witnesses, namely, Alu Hembrom (DW 1) and Chhotu Hembrom (DW 2) were examined on behalf of the defence. 7. Out of the several witnesses examined by the prosecution, three of them, namely, PWs 1 to 3 were declared hostile by the prosecution. The learned trial Court on going through the evidence on record had observed that there is no direct evidence in respect of commission of murder of the deceased and the case depends entirely on circumstantial evidence. The trial Court placed reliance on the testimony of PW 8 Tala Hembrom and believed his testimony that the appellant in the late hours of night had brought his wife to the house of the witness in an injured condition and had made an extra judicial confession before the witness that he had assaulted the deceased and finding support from the medical evidence and further by drawing an adverse inference against the appellant on his conduct of not having informed the police or the village chaukidar and for not being able to prove his case in defence regarding the purported enmity between him and PW 8, the learned trial Court has recorded its finding of guilt against the appellant for the alleged offence and sentenced him accordingly. 8. The learned Counsel for the appellant has assailed the impugned judgment of conviction and sentence of the appellant on several grounds. Learned Counsel explains that the learned trial Court has committed a serious error in placing reliance on the sole testimony of the solitary witness PW 8, even though the testimony of the witness has not been corroborated by any other witness, even by PW 1 who is the father of PW 8. Learned Counsel further submits that the learned trial Court has totally misread the evidence on record ignoring the vital contradictions appearing in the testimonies of the witnesses as compared to the medical evidence. Learned Counsel explains that the time of occurrence as stated by the witness is contradicted by the opinion of the doctor, since according to the witness, the deceased, in an injured condition, was taken to the house of the village pradhan in the night of 2.3.1998 and on the same night, she died while the doctor, on the other hand, who conducted the post-mortem examination on 4.3.1998 at 11.45 a.m. opined that the death of the deceased had occurred within 24 hours of the post-mortem examination. Learned Counsel argues further that the trial Court has misdirected itself by relying on the alleged extrajudicial confessional statement purportedly made by the appellant before PW 8, since the testimony of PW 8 on his issue finds no corroboration from any other source. Learned Counsel adds further, that in the light of specific case of the appellant that his house was burgled and his wife was found in a seriously injured condition indicating thereby that some unknown criminals had entered into his house and had assaulted the deceased when she offered resistance, it was the duty of the Investigating Officer to conduct investigation on this aspect of the matter also and to visit the house of the appellant for inspection, but the Investigating Officer had totally abstained himself from making any such effort in course of the investigation. 9. Learned Counsel for the State on the other hand, while refuting the grounds advanced on behalf of the appellant claims that the entire grounds are misconceived and misleading. Reading out the evidence of PW 8 along with the evidence of PW 1, learned Counsel submits that the incident as narrated by PW 8 clearly indicates that the appellant had brought the deceased in a seriously injured condition to the house of PW 8 and on enquiry by PW 8, the appellant had stated that he had assaulted his wife (deceased) since she had done some "bad things". Learned Counsel adds that though the appellant has claimed previous enmity with PW 8 on account of some land dispute, but no evidence has been adduced by the appellant either to prove. any land dispute or any enmity with PW 8. Learned Counsel submits further that in absence of any evidence on the record suggesting that PW 8 for any definite reason, could have been prompted to depose falsely against the appellant, there is no reason why the testimony of PW 8 should not be believed. Learned Counsel explains further that though PW 1 Jhore Hembrom who is the village pradhan has been declared hostile by the prosecution, but in his testimony, he has offered corroboration to the testimony of PW 8 in respect of the fact that the appellant had brought the injured/deceased in an injured condition to his house. 10. Learned Counsel explains further that though PW 1 Jhore Hembrom who is the village pradhan has been declared hostile by the prosecution, but in his testimony, he has offered corroboration to the testimony of PW 8 in respect of the fact that the appellant had brought the injured/deceased in an injured condition to his house. 10. Before proceeding to appreciate the rival contentions of the learned Counsel, certain facts which have not been disputed or controverted may be taken note of. These facts are: (i) That the deceased was wife of the appellant and she used to live in the house of the appellant at village Khokhro Tola within Rajmahal P.S. located at a distance of about 10 kms. from the concerned police station. (ii) That in the night of 2.3.1998 at 11.00 p.m. the appellant had brought the deceased in a seriously injured condition to the house of the village pradhan (PW 1) within his own village and that in the same night, the deceased had succumbed to her injuries. The appellant has tried to explain that he had himself found the deceased in a seriously injured condition and it was for the purpose of seeking prompt assistance in the matter that he had brought the injured to the house of the village pradhan whom he considered competent to provide him assistance. (iii) That the deceased had suffered homicidal death on account of ante- mortem injuries inflicted on her and this fact has been confirmed by the evidence of PW 5 who had conducted post-mortem examination on the dead body of the deceased. 11. From the evidence of the witnesses, it would appear that as rightly observed by the trial Court, there is no eye-witness to the assault made on the deceased land that the injuries which were inflicted on her had eventually proved fatal. The case of the prosecution rests therefore only on circumstantial evidence projected mainly by PW 8 Tala Hembrom, who is the son of the village pradhan (PW 1). 12. PW 8, Tala Hembrom in his deposition has stated that on the date of occurrence, at about 11.00 p.m., Som Hembrom had brought his wife to the house of the witness in an unconscious condition. 12. PW 8, Tala Hembrom in his deposition has stated that on the date of occurrence, at about 11.00 p.m., Som Hembrom had brought his wife to the house of the witness in an unconscious condition. The witness had asked the appellant as to why he had assaulted his wife whereupon the appellant answered that she had done some bad things and, therefore, he had assaulted her. The witness adds further that the deceased had died soon after at his door. In his cross- examination, he explains that his house is located at a distance of about 150 yards from the house of the appellant and that the occurrence had taken place on the day of Magh Yatra festival. He adds further that on previous occasions also, the appellant used to assault his wife for which a panchayat was held in the village, though he is not able to specify the date or month when the panchayat was held. He also describes that the appellant had brought the injured to his house carrying her on his shoulder. He admits that when the deceased was brought to his house, there were about 4 to 5 persons present at his house, though he is not able to name any of them. From the testimony of this witness, the facts which surface are that in the night of 2.3.1998, the appellant had brought his wife in a seriously injured condition to the house of the witness and within few moments thereafter, the injured had succumbed to her injuries at the house of the witness. The other fact which emerges is that the appellant had made an extra judicial confession admitting before the witness that he had assaulted the deceased on account of the deceased having indulged in some bad practices. The witness whom the prosecution has produced for lending support to the testimony of PW 8 is PW 1, Jhore Hembrom who is the father of PW 8 and the pradhan of the village. This witness has been declared hostile by the prosecution since he had failed to offer any support to the prosecution case. Her however claims that on the date of the occurrence, Som Hembrom, who belongs to his own village, had brought his wife to his house. This witness has been declared hostile by the prosecution since he had failed to offer any support to the prosecution case. Her however claims that on the date of the occurrence, Som Hembrom, who belongs to his own village, had brought his wife to his house. He does not make any further statement as to why did the appellant bring his wife to him, nor does he confirm to have seen the deceased in an injured condition. He explains that at the that time, he was under influence of liquor. 13. The testimony of PW 4 Churka Murmu and that of PW 7 Tala Mai Murmu is hearsay on the point of occurrence. PW 7 confirms that she heard about the death of her sister (deceased) and she had seen the dead body of her sister at the house of the village pradhan. The testimony of PW 6 Shibu Murmu, informant of this case, is also hearsay on the point of occurrence. However, in his testimony, he brings on record that the deceased was his sister and was married to the appellant and that since her marriage, his sister used to live with her husband. He claims that his brother- in-law Som Hembrom appellant had killed his sister and this information was conveyed to him by the village pradhan Tala Hembrom and the village chaukidar who told him that his brother-in-law had killed his sister. He went to the house of the village pradhan where he found his sister lying dead with several injuries on her body. He also confirms that the police had arrived and recorded his statements. He informs that the deceased had a son aged 12 years and a daughter aged 8 years. He also acknowledges that the relation between his sister (deceased) and her husband (appellant) was cordial and that she never complained against her husband. He names the village pradhan as Tala Kisku/Hembrom as being the person who had come to his house in the morning at about 9.00 a.m. to inform about the death of his sister. 14. The Investigating Officer {PW 9) has explained that on 3.3.1998, he was posted as Assistant Sub-Inspector at Radhanagar P.S. On that day, he heard a rumour that murder of some person had been committed in Nawapara. He went to the village and recorded fardbeyan of PW 6 Shibu Murmu. 14. The Investigating Officer {PW 9) has explained that on 3.3.1998, he was posted as Assistant Sub-Inspector at Radhanagar P.S. On that day, he heard a rumour that murder of some person had been committed in Nawapara. He went to the village and recorded fardbeyan of PW 6 Shibu Murmu. He also found the dead body of the deceased and had conducted inquest on the dead body in presence of the witnesses Budhan Hembrom, Surjan Hembrom and had forwarded the dead body to the hospital for post-mortem examination. His attention was invited by the prosecution to the statements of the hostile witnesses recorded in course of investigation and he maintains that the witnesses had given incriminating statements against the accused/ appellant. 15. On reading the entire evidence, it would appear that there is no independent corroboration to the testimony of PW 8 in respect of the purported extrajudicial confession made by the appellant before him. Though the witness himself admits that at the time when the appellant had brought the deceased in an injured condition to the door of the village pradhan and had made extra judicial confession, about 4 to 5 persons were present suggesting thereby that they too had seen and heard the appellants purported extra judicial confession, but none of these persons has either been named or produced by the prosecution. It also appears that though in the FIR, the informant has stated that the villagers had caught hold and detained the appellant, but expect PW 4, no other witness has come forward to make such an assertion or to confirm that the appellant was caught hold of and detained by the villagers. Even though PW 4 claims to have seen the appellant being detained by the villagers, he does not explain the reason or circumstances in which the appellant was detained. Even PW 8 in his deposition does not confirm that pursuant to the confession made by the appellant, the co-villagers had caught hold of the appellant and detained him. In this context, the testimony of PW 6 the informant is significant. Even PW 8 in his deposition does not confirm that pursuant to the confession made by the appellant, the co-villagers had caught hold of the appellant and detained him. In this context, the testimony of PW 6 the informant is significant. Though this witness in his deposition has claimed that the village Pradhan Tala Hembrom and village chaukidar had come to his house and had informed him that his sister (deceased) was murdered by Sorri Hembrom, but he does not confirm that Som Hembrom had made any extrajudicial confession of his guilt either before the village pradhan or the village chaukidar. His statement that the aforesaid two persons who had visited his house had informed him that Som had killed the deceased, is of no consequence since firstly, the statement made is hearsay and secondly, since such assertion even if made by the said informers is not on the basis of any direct evidence or as an eye-witness account. In the light of the above facts and circumstances, particularly in absence of any independent corroboration to the testimony of PW 8 that the appellant had made an extra judicial confession of his guilt before him, it would not be safe to rely on such statement of the PW 8. 16. The only circumstance which remains is that the dead body of the deceased was found at the door of the village Pradhan PW 8. As to how the dead body came to be there, the explanation of PW 8 is that it was the appellant who had brought the deceased to his house in an unconscious condition with serious injuries on her and soon after being brought, the deceased had succumbed to her injuries. If a portion of the testimony of PW 8 relating to the purported extrajudicial confession of the appellant is excluded from consideration, the fact which remains is that. the appellant had brought the deceased in her injured condition to the house of the village pradhan. The appellant has offered his explanation that since it was a festival day, he had gone to see the fair and when he came home, he found his wife seriously injured and his house burgled and in such situation, intending to seek assistance, he brought his injured wife to the house of the village pradhan. This appears to be a consistent plea taken by the appellant from the very beginning. This appears to be a consistent plea taken by the appellant from the very beginning. Strangely enough, even though in the light of the evidence of the witness, namely, PW 8 that the deceased was brought in an injured condition to the house of the village pradhan where she succumbed to her injuries, it was incumbent upon the Investigating Officer to find out the place where the deceased was subjected to assault and the injuries inflicted on her and in order to find this out, he should have visited the house of the appellant also since the deceased lived in the house of the appellant. Yet, no such investigation appears to have been undertaken by the police officer. 17. As stated above, there is no direct evidence to the assault made on the deceased. It also appears to be highly improbable that the appellant having inflicted fatal injuries to his wife would carry her in her injured condition to the house of the village Pradhan only to confess that he had assaulted her. On the consideration of the evidence on record, it would be highly hazardous to convict the appellant on the sole circumstance that the appellant had brought the deceased in injured condition to the house of the village Pradhan in the late hours of night and that the deceased used to live in the company of the appellant at his house at the relevant time. Learned trial Court appears to have misread the evidence on record and has wrongly placed implicit reliance on the testimony of PW 8 for drawing inference of guilt against the appellant. The finding of guilt -against the appellant as recorded by the learned trial Court is therefore not sustainable and is fit to be set aside. We find merit in this appeal. Accordingly, this appeal is allowed. The impugned judgment and order of conviction and sentence of the appellant in Sessions Trial No. 190 of 1998 is hereby set aside and the appellant is acquitted of the charge under Section 302 of the Indian Penal Code. The appellant is directed to be released forthwith, if not wanted in connection with any other case(s). D.K. Sinha, J. 18. I agree.