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2007 DIGILAW 647 (JHR)

Sanjay Murmu v. State Of Jharkhand

2007-08-10

DABBIRU GANESHRAO PATNAIK, DILIP KUMAR SINHA

body2007
JUDGMENT D.K. Sinha, J. 1. The present Cr. Appeal is directed against the judgment of conviction under Sections 302/34, 307/34 and 341/34 of the Indian Penal Code passed by Shri Arun Kumar Datta, the Additional Sessions Judge, Ghatshila in S.T. No. 103 of 2001 whereby the sole appellant, Sanjay Murmu has been sentenced to undergo rigorous imprisonment for life, rigorous imprisonment for seven years and simple imprisonment for one month respectively under the aforesaid sections with direction that the sentences would run concurrently. 2. The prosecution story as it stands narrated in the statement of the informant, Arsu Murmu recorded in Moshabani Mines Hospital on 8.7.1999 at 11.10 a.m. in injured condition was that on the same day she alongwith her son Anta Murmu (since deceased) and Halwaha Burha Murmu had been to her field and while Halwaha Burha Murmu was ploughing the field the appellant Sanjay Murmu with his father Baley Murmu appeared there armed with bow, arrows and axe in their hands and enquired as to why they were ploughing the field whereupon her son Anta Murmu (since deceased) replied that the field, belonged to him and as such he was cultivating it for the last 50 years. His such reply ignited the situation which turn into altercation between them and it is alleged that the accused Baley Murmu shot arrow from his bow which struck in the thigh of Anta Murmu. He again shot another arrow which penetrated his chest and he started running in injured condition. When the informant enquired as to why they were shooting arrows on her son, it is alleged that then the appellant Sanjay Murmu inflicted blow in her abdomen with the Axe causing bleeding injury and on alarm raised by the informant, a large number of witnesses assembled there who witnessed both the assailants running away from the place of occurrence. She went out in search of her son and found her son Anta Murmu. lying dead under a banian tree sustaining injuries. From there she came to Mosabani police station to inform the police but she was immediately sent to the hospital where she was treated and her statement was recorded. She went out in search of her son and found her son Anta Murmu. lying dead under a banian tree sustaining injuries. From there she came to Mosabani police station to inform the police but she was immediately sent to the hospital where she was treated and her statement was recorded. Disclosing the genesis of the occurrence, she explained that there held a Panchayati in respect of the disputed land alleged to be place of occurrence in the village, but none of the accused adhered to the verdict of the Panchayati and out of anguish Sanjay Murmu inflicted axe blow on her abdomen whereas his father Baley Murmu shot arrows from his bow to Anta Murmu as a result of which her son died sustaining injuries. 3. The police on the statement of the informant Arsu Murmu (PW 2) instituted a case being Moshabani Police Case No. 39 of 1999 dated 8.7.1999 under Sections 302/307/341/34, IPC and after investigation the police submitted charge-sheet against both the accused Baley Murmu (father of the appellant) and Sanjay Murmu (appellant) under the aforesaid sections of IPC. After framing of charge they were put on trial. 4. It is to be noted that though charge against both the accused persons was framed but in course of trial father of the appellant, Baley Murmu escaped and thereafter the trial of Baley Murmu was separated by splitting up of the record of the trial and the appellant was proceeded who denied his guilt. The appellant was examined under Section 313 of Cr PC wherein he examined that he heard that Arsu Murmu was playing which, as such, some one might have inflicted injury on her and that he was innocent. 5. As many as nine witnesses were produced and examined on behalf of the prosecution. Besides, signatures of the witnesses on the seizure list of recovery of bow and arrow from the possession of Baley Murmu and recovery of small axe from the possession of the appellant Sanjay Murmu was proved and marked Exts. 1 and 1/2, fardbeyan of the Informant Ext. 2, Formal FIR Ext. 3, endorsement on the fardbeyan Ext. 4, Inquest Report Ext. 5, Seizure list Ext. 6. Post Mortem Report Ext. 7 and the Injury Report were proved Ext. 8. 6. Mr. 1 and 1/2, fardbeyan of the Informant Ext. 2, Formal FIR Ext. 3, endorsement on the fardbeyan Ext. 4, Inquest Report Ext. 5, Seizure list Ext. 6. Post Mortem Report Ext. 7 and the Injury Report were proved Ext. 8. 6. Mr. D.K. Dubey, the learned Counsel submitted that the appellant is innocent and the allegation of assault to the deceased Anta Murmu by sowing arrows causing his death was against co-accused Baley Murmu and not against the present appellant Sanjay Murmu. The only allegation against the appellant was that he inflicted blow with axe which caused injury in the abdomen of the informant Arsu Murmu. The informant in her fardbeyan recorded in the hospital had stated that her son Anta Murmu died in the football ground under a Banian tree sustaining arrow injury but in her substantial evidence she improved and developed her statement that she came to learn about the death of her son on the subsequent date and in this manner her version suffers contradiction which does not inspire confidence. The informant (PW 2) further testified that she was there at the place of occurrence with her daughter-in-law PW 1 Manko Murmu i.e. widow of the deceased and her daughter but the daughter was not examined. PW 1 Manko Murmu widow of the deceased though has claimed to be an eye-witness of the alleged occurrence but she cannot be as she arrived at the scene on hearing alarm which took substantial time in covering the distance from her matrimonial home to the place of alleged occurrence of about a Kilometre. According to her version, the place of occurrence was the football ground and when she arrived there her mother-in-law (informant) was not there and that her husband was alone there. In this manner there appears vital contradictions between the testimonies of the informant (PW 2) and her daughter-in-law (PW 1). 7. Advancing his argument Mr. D.K. Dubey, the learned Counsel, submitted that PW 3 Karan Mardi has given altogether a different story in the testimony who deposed that at the place and time of occurrence he was with Anta Murmu (since deceased) where Baley Murmu and Sanjay Murmu appeared. According to her version, Sanjay Murmu (appellant) was holding bow and arrows whereas an axe was in the hands of the co-accused Baley Murmu. According to her version, Sanjay Murmu (appellant) was holding bow and arrows whereas an axe was in the hands of the co-accused Baley Murmu. Both began to assault Anta Murmu and it was specifically alleged that the appellant (Sanjay Murmu) shot arrow from his bow which embedded in the chest of Anta Murmu and the second arrow struck in his thigh as a result he died of sustaining injuries. The PW 3 Karan Mardi alleged specifically against the accused Baley Murmu who inflicted injury on the abdomen of the mother of the deceased with an axe and therefore, the appellant Sanjay Murmu cannot be held guilty in view of vital contradictions in material particulars. In the cross-examination the witness testified that on the date of occurrence he was the only servant in the house of the deceased and there was none except him as servant and he was ploughing the field of the deceased and that the deceased at the relevant time was standing over the ridge. The witness denied the suggestion that Anta Murmu was killed in the football ground by unknown persons and the appellant was falsely implicated in this case,. 8. Mr. Dubey further pointed out that the informant, Arsu Murmu (PW 2) in her fardbeyan clearly narrated that at the relevant time of occurrence it was Buddha Murmu her servant (Halwaha) who was ploughing her land when the appellant with his father Baley Murmu arrived. There is no consistency in the testimonies of PW 1 Manki Murmu (widow), PW 2 Arsu Murmu (informant-mother) and PW 3 Karan Mardi (servant) on material particulars which leads to inference that the occurrence did not take place in the manner presented by the prosecution. All the three witnesses are interested and partisan witnesses. 9. Mr. Dubey further asserted that PWs 4 and 5, who are the seizure witnesses, have simply proved their signatures on the seizure list and their testimony did not disclose that the weapons like bow, arrow and axe were not recovered from a particular accused in their presence. On the other hand, in the cross-examination they testified in clear words that bow, arrow and axe were kept in the police station from before and that they had no knowledge about the fact of the case except that Sub-Inspector of Police obtained their signatures on the paper. On the other hand, in the cross-examination they testified in clear words that bow, arrow and axe were kept in the police station from before and that they had no knowledge about the fact of the case except that Sub-Inspector of Police obtained their signatures on the paper. In this manner they have not supported the prosecution case leading to culpability of the appellant. 10. Concluding his argument Mr. Dubey submitted that the testimony of the I.O. (PW 6) Rajeshwar Singh is relevant in the sense that he had visited the place of occurrence after the statement of the informant was recorded. In his opinion there were two places of occurrence viz. first was situated at village Barulia Total Matialdhi which was culturable land of the informant and it was alleged that the informant and her son were assaulted there but he did not find any remarkable sign or object worth to be recorded or collected. Second place of occurrence, according to him, was at the distance of 500 yards towards east near Banian tree in the football ground where Anta Murmu was found dead sustaining injuries. He spotted pool of blood there but did not collect the blood stained earth from the second place of occurrence. He arrested the accused Baley Murmu with arrow and bow and the appellant Sanjay Murmu with an axe to which a seizure list was prepared. The learned Counsel pointed out that seized weapons from the possession of the appellant and co-accused was not sent for examination by Forensic Science Laboratory. Similarly no explanation has been accorded by the prosecution as to what happened about two other arrows alleged to be recovered from the dead body of the Anta Murmu. Even there is no seizure list of such arrows on the record and in this manner the prosecution case could not be proved. Culpable homicide of Anta Murmu is not disputed but the prosecution failed to connect the appellant either with the death of Anta Murmu or with the injuries sustained by the informant (PW 2) Arsu Murmu and therefore, the judgment of conviction and order of sentence passed against the appellant Sanjay Murmu is liable to be set aside. 11. Mr. Culpable homicide of Anta Murmu is not disputed but the prosecution failed to connect the appellant either with the death of Anta Murmu or with the injuries sustained by the informant (PW 2) Arsu Murmu and therefore, the judgment of conviction and order of sentence passed against the appellant Sanjay Murmu is liable to be set aside. 11. Mr. Shekhar Sinha, the learned A.P.P., submitted that the impugned judgment is well discussed and the trial Judge observed that there is clear evidence of PW 2 and PW 3 that both the accused including the appellant in furtherance of common intention, committed murder of Anta Murmu and also attempted on the life of the informant, Arsu Murmu which find buttress from the evidence of PW 6 Investigating Officer, who testified in paragraph 4 of his evidence that he arrested the accused Baley Murmu with bow and Sanjay Murmu with tangi to which a seizure list was prepared (Ext. 6) duly signed by the independent witnesses PW 4 and PW 5 who admitted their signatures on the seizure list. Mr. Shekhar Sinha further submitted that the finding of the trial Judge is based upon the evidence adduced on behalf of the prosecution which unerringly leads to the guilt of the appellant that he in furtherance of the common intention committed murder of Anta Murmu and attempted to commit murder of the informant, Arsu Murmu by inflicting blow with axe on her vital part and at that time both the victims were wrongfully restrained by them and therefore the appellant was rightly convicted under Sections 302/34, 307/34 and 341/34 of the Indian Penal Code which does not call for interference in appeal. 12. Having regard to the facts and circumstances of the case, argument advanced on behalf of the parties, we find from the trial Court records that material witnesses in the instant case are PW 1 Manko Murmu (widow of the deceased), PW 2 Arsu Murmu (informant and mother of the deceased) and PW 3 Karan Mardi (servant of the deceased) who claimed that they were present at the place of occurrence on due time and witnessed the appellant, Sanjay Murmu and his father Baley Murmu inflicting assault causing death of Anta Murmu and grievous hurt to the informant Arsu Murmu. 13. The admitted case as testified by PW 7 Dr. 13. The admitted case as testified by PW 7 Dr. Nawal Kishore Sinha (Retired M.O.) who held autopsy on the body of Anta Murmu on 8.7.1999 at 4 p.m. was that the death was due to shock and haemorrhage on account of the injuries caused by sharp cutting weapons, an arrow inserted in the left side of chest 1" x 1/2" x 4" and another sharp cutting wound on the left side of the thigh with arrow inserted in the wound 1-1/2" x 1" x 5". The first arrow entered into the left side of chest, ruptured the left side of lung whereas second arrow entered into the left side of the thigh, which ruptured the muscle and vessels. Yet, there is no documentary evidence on the record that both blood stained arrows were recovered from the dead body and seizure list was prepared and later on arrows were sent to the Forensic Science Laboratory for compare. It is clear from the evidence of PW 7 Nawal Kishore Sinha, however that Anta Murmu suffered culpable homicide as the injuries found on his person could not be self inflicted. 14. As regards the statements of PW 1 (Manko Murmu), PW 2 (Arsu Murmu) and PW 3 (Karan Mardi) we find that there is substance in the arguments advanced on behalf of the appellant that there is no consistency in their testimonies in respect of the post occurrence event and involvement of the appellant and his father there in. Even there is vital contradiction in respect of the place of occurrence. 15. Pw 1 Manko Murmu i.e. widow of the deceased testified that about 9 Oclock in the morning she went to the place of occurrence with his sister-in- law from her matrimonial home on hearing alarm and found that her husband, who had sustained injury with arrows in his chest and thigh, was in the field where her mother-in-law (PW 2) and servant (PW 3) Karan Mardi were present. She further testified having seen the appellant, Sanjay Murmu with an axe in his hand whereas Baley Murmu was holding arrows. The occurrence was communicated to the Moshabani police station by her mother-in-law. In cross-examination the following facts emerged: (i) The occurrence took place at Medhia Football ground at the distance of about one kilometer from her village. She further testified having seen the appellant, Sanjay Murmu with an axe in his hand whereas Baley Murmu was holding arrows. The occurrence was communicated to the Moshabani police station by her mother-in-law. In cross-examination the following facts emerged: (i) The occurrence took place at Medhia Football ground at the distance of about one kilometer from her village. (ii) She appeared at the scene on hearing alarm of her mother-in-law but she found only her husband there and the name of ploughman was Karan Mardi (PW 3). 16. PW 2 Arsu Murmu, who is the informant of the case, has given altogether different story by testifying that on the date of the occurrence at about 10 Oclock her servant Burha Murmu was ploughing field situated at Matialdhi, her son Anta Murmu was also there. She was standing on the village road and the appellant, Sanjay Murmu with axe in his hand and his father Baley Murmu with bow and arrows came there. She further testified that Baley Murmu shot two arrows which embedded in his left thigh and on his chest consecutively. The appellant Sanjay Murmu inflicted axe blow on her abdomen causing injuries and both fell down on the ground and on her alarm as also on the alarm of the servant (PW 3), her daughter-in-law (PW 1) and her daughter (not examined) carried water and after quenching she went to the police station leaving behind her son who was lying dead there on the ground. She testified that her statement was recorded at the police station and thereafter she was referred to hospital where she came to learn about the death of her son on the subsequent day. In the cross-examination she admitted that she had never visited the football ground of village Medhia and therefore, she could not say as to whether there was a banian tree on the said ground. She expressed her ignorance in respect of recovery of the dead body of her son from under a banian tree situated in the football ground. In the cross-examination she admitted that she had never visited the football ground of village Medhia and therefore, she could not say as to whether there was a banian tree on the said ground. She expressed her ignorance in respect of recovery of the dead body of her son from under a banian tree situated in the football ground. We find that she has narrated altogether a different story in her fardbeyan (statement) which was recorded on the same day of occurrence at Moshabani Hospital at about 11.10 a.m. by S.I. of Moshabani police station, that after sustaining injuries caused by arrows on the left thigh and chest of Anta Murmu, he ran towards east and on her alarm her daughter-in-law and daughter came there who witnessed both the accused running away from the place of occurrence. She followed her son towards Medhia football ground and found Anta Murrau lying dead under the Banian tree and from there she went to Moshabani police station. The police removed her to Moshabani Hospital. We find that the informant is consistent in fardbeyan and her substantive evidence that it was her servant Burha who was ploughing the field in presence of her son Anta Murmu but Burha was not examined. On the other hand, we find that PW 3 Koran Mardi claimed to be the only servant in the house of the informant who was ploughing field at the relevant time of occurrence. We further find that the fardbeyan of the informant PW 2 is not consistent with what she narrated in her testimony in respect of post occurrence event. In her earlier statement she narrated that she followed her son to the football ground and found him dead under a banian tree whereas she testified that she left the place of occurrence leaving behind her son in injured condition and informed the Moshabani police station, where her statement was recorded and then she was referred to hospital. She further testified that she came to learn about the death of her son on subsequent day. But at the same time we find consistency in both her statement as regards the complicity of the appellant Sanjay Murmu, who inflicted blow with the axe on her abdomen causing bleeding injury and statements of this injured witness stand supported in the evidence of PW 9 Dr. But at the same time we find consistency in both her statement as regards the complicity of the appellant Sanjay Murmu, who inflicted blow with the axe on her abdomen causing bleeding injury and statements of this injured witness stand supported in the evidence of PW 9 Dr. S.K. Manjhi who found penetrated wound 2" x 2" on the left side of abdomen which was grievous in nature caused by sharp object and that viscera came out from the aforesaid injury. The age of injury was assessed within one hour of her examination and it was proved Ext. 8. In the opinion of PW 9, the said injury was dangerous to life if it was not treated in time. The finding of PW 9 Dr. S.K. Manjhi was corroborated by PW 8 Dr. Shekhar Nath Mukherjee (M.O) who at the relevant time was posted at H.C.L. Moshabani Hospital as incharge of the causality ward where the injured was brought first point in time by the police. 17. PW 3 Karan Mardi claimed to be an eye-witness of the alleged occurrence by testifying that he was with Anta Murmu in the field which was the place of occurrence where the appellant Sanjay Murmu came with bow and arrow in his hand accompanied by his father Baley Murmu who was holding an axe. He further testified that both began to assault Anta Murmu, specifying that Sanjay Murmu shot arrow which embedded in his chest and thigh as a result of which Anta Murmu died of sustaining injuries. He further testified that it was Baley Murmu who assaulted the mother of Anta Murmu with Axe and thereafter he returned back to his home after the occurrence. In the cross-examination he admitted that he was the servant in the house of Anta Murmu at the relevant time and that he was ploughing field when the occurrence took place and there was none except him as the servant in the house of Anta Murmu. 18. We find from the statement of PW 6 Rajeshwar Singh, investigating officer of the case that while posted as S.I. at Moshabani police station on 8.7.1999 he after recording the statement of the informant at Moshabani Mines Hospital he took up the charge of investigation. He visited the place of occurrence as pointed out by the village Chowkidhar 1/3 Bishwajit Sao and Burha Murmu. He visited the place of occurrence as pointed out by the village Chowkidhar 1/3 Bishwajit Sao and Burha Murmu. According to PW 6, first place of occurrence was the field of the informant situated at Tola Matiadhi by the side of the village road, with an area of 10 Kattha but did not find any remarkable object there. He visited another place of occurrence at the distance of 500 yard east which was a football ground where he found the dead body of Anta Murmu under a Banian tree and pool of blood. He further found that village of the informant was about 600 yards from the place of occurrence. He arrested the appellant Sanjay Murmu with axe and co-accused Baley Murmu with arrow and prepared the seizure list in presence of the two independent witnesses. The I.O. is silent as to from where he arrested the appellant Sanjay Murmu and his father Baley Murmu and as to whether the seized weapons were sent to the Forensic Science Laboratory. There is no connecting evidence on the record of the FSL that the axe seized from the possession of the appellant was used in assaulting the informant causing grievous injury in the abdomen of the informant, PW 2 Arsu Murmu as a result of which Viscera of her abdomen come out. But the informant Arsu Murmu is consistent in both of her statements that it was the appellant Sanjay Murmu who arrived at the place of occurrence with axe in his hand accompanied by his father Baley Murmu who was holding bow and arrows and his father shot two arrows on Anta Murmu and the appellant inflicted blow with axe on the abdomen of the informant only when she raised objection as to why they were shooting arrows to her son and therefore, we have reason to believe that there was no meeting of minds between the principal accused Baley Murmu and the appellant Sanjay Murmu in committing murder by causing death of Anta Murmu in the manner narrated above by the PW 2 Arsu Murmu. The testimony of the informant stands corroborated in the substantive evidence of PW 3. The testimony of the informant stands corroborated in the substantive evidence of PW 3. PW 3 Karan Mardi testified under the cross- examination that at the relevant time of the occurrence he was ploughing the field of the informant and therefore, it can safely be inferred that his attention was towards pair of Oxen and the plough with concentration on filling of the field, so in our view, though PW 3 Karan Mardi spotted the arrival of the appellant Sanjay Murmu and his father Baley Murmu at the place of occurrence with bow, arrows and axe but on account of his attention occupied on ploughing he could not adjudge as to who shot arrows and by whom axe was dealt inflicting injury in the abdomen of the informant. Yet he is consistent that both the accused arrived at the place of occurrence with the aforesaid weapons. 19. We further find that the statements of the informant PW 2 Arsu Murmu is consistent in respect of complicity of the appellant Sanjay Murmu inflicting grievous hurt to her which was dangerous to life but admittedly without repetition of blow and hence his conviction under Section 307 read with 34, IPC cannot sustain. At best under the facts and circumstances, offence is made out under Section 326, IPC against him. 20. We gather from the evidence adduced on record that the prosecution failed to prove that the appellant shared common intention with his father Baley Murmu (absconder) against whom there was allegation of committing murder of Anta Murmu as the facts narrated above. Therefore, we hold that the conviction of the appellant under Section 302 read with 34, IPC cannot sustain and hence not maintainable as also under Section 341 read with 34, IPC. 21. In the result, the appellant Sanjay Murmu is acquitted from the charges under Sections 302/34 and 341/34, IPC. His conviction under Section 307/34, IPC is modified to conviction under Section 326, IPC and for his such conviction rigorous imprisonment for a period of 5 (five) years would certainly meet the ends of justice and accordingly he is sentenced. 22. This appeal is allowed with the modification in the manner indicated above. Period of detention undergone by the appellant, Sanjay Murmu, as under trial prisoner shall be set off against the sentence imposed hereby. 22. This appeal is allowed with the modification in the manner indicated above. Period of detention undergone by the appellant, Sanjay Murmu, as under trial prisoner shall be set off against the sentence imposed hereby. The trial Court shall verify the same and if the appellant has already undergone the period of sentence, necessary order for release of the appellant from custody, if not wanted in any other cases, may be passed. D.G.R. Patnaik, J. 23. I agree.