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2007 DIGILAW 670 (JHR)

Babulal Manjhi v. State Of Jharkhand

2007-08-21

D.K.SINHA, D.P.SINGH

body2007
JUDGMENT 1. Present criminal appeal is directed against the judgment of conviction under Section 302 of the Indian Penal Code, recorded by 2nd Additional Sessions Judge, Hazaribag in Sessions Trial No. 286 of 1998/88 of 1998, whereby and whereunder, the appellant Babulal Manjhi was sentenced to undergo imprisonment for his life. 2. Prosecution story, in brief, as it stands narrated in the Fardbayan of the informant Dasmi Devi (P.W.-2), was that on 3.4.1998 at about 6:30 a.m. the appellant Babulal Manjhi came to her (informant) quarter and searched her husband Lalu Oraon to which she replied that he was not there in the quarter. She further narrated that the appellant Babulal Manjhi returned back by extending threat that he would not spare him as her husband had taken away his wrist watch. On the same day, at about 8:00 a.m. her father Mahadeo Oraon (P.W.-5) came to her quarter and informed having been derived information from Bhagwat Turi (P.W.-4) that the appellant Babulal Manihi after apprehending his son-in-law Lalu Oraon(deceased) took him to his quarter all the way assaulting him. Upon such information, the informant Dasmi Devi with her mother Fulo Devi went to the quarter of the appellant Babulal Manjhi and found that the door was closed from outside. Yet, when she pushed the door, it was opened by the appellant Babulal Manjhi and then she spoiled that her husband was trembling with the bleeding injuries in his left leg. He (Lalu Oraon) narrated that he was assaulted brutally by the appellant Babulal Manjhi and that he would not survive and became unconscious. She along with her mother shifted weeping then the neighbouring people arrived at the scene and took her injured husband to T1SCO Hospital on ambulance where her husband was declared brought dead. The occurrence was narrated to her father and the near relatives on their arrival at the hospital where the police also arrived and recorded her Fardbayan. She explained that while her husband was being removed to the Hospital, the appellant Babulal Manjhi escaped after locking his quarter. On the basis of her statement Mandu (West Bokaro) P.S. Case No. 100 of 1998 was lodged against the appellant Babulal Manjhi for the offence under Section 302 of the Indian Penal Code and the Police after investigation, submitted charge-sheet against the appellant for the said offence. 3. On the basis of her statement Mandu (West Bokaro) P.S. Case No. 100 of 1998 was lodged against the appellant Babulal Manjhi for the offence under Section 302 of the Indian Penal Code and the Police after investigation, submitted charge-sheet against the appellant for the said offence. 3. We have taken up the appeal on the prisoners petition to the High Court against the judgment of conviction and order of sentence recorded against the appellant. He was put on trial by framing of charge under Section 302 of the Indian Penal Code. Statement of the appellant Babulal Manjhi was recorded under Section 313 of the Code of Criminal Procedure after evidence adduced on behalf of the prosecution to which he denied his guilt and declined to adduce defence evidence. 4. Prosecution had examined altogether ten witnesses. Besides, the proved post mortem report (Ext.l), signature of the informant Dasmi Devi on her Fardbayan (Ext.2), signature on the inquest report (Ext.2/1)/ signature of the witness on the Fsrdbayan (Ext.2/2), signature of another witness Ajay Oraon (P.W.-8) on the inquest report (Ext 2/4), entire Fatdbayan (Ext.3), Death Certificate (Ext.4) and formal F.I.R.(Ext. 5). 5. Mr. Rajeev Sharma, learned Amicus Curiae, assailed the judgment impugned on the ground that the judgment of conviction was recorded for the charge under Section 302 of the Indian Penal Code against the appellant Babulal Manjhi without appreciation of evidence on the record as the prosecution miserably (ailed to connect the chain of events leading to hypothesis of the guilt of the appellant. Babulal Manjhi for the charge he stood. There was no eye-witness of the occurrence; except some circumstances in the statement of the informant Dasmi Devi which do not conclusively project that it was the appellant Babulal Manjhi who assaulted as a result of which her husband succumbed his injuries. The Investigating Officer admitted by testifying that he did not find blood or blood spots at the D.V.C. quarter of the appellant alleged to be place of occurrence where, according to the informant she witnessed bleeding from the nose, mouth and knee of her husband. 6. Advancing his argument, learned Amicus Curiae, further submitted that the injuries found in the post mortem examination of the victim Lalu Oraon was not such to infer a case of culpable homicide amounting to murder. P.W.-1 Dr. 6. Advancing his argument, learned Amicus Curiae, further submitted that the injuries found in the post mortem examination of the victim Lalu Oraon was not such to infer a case of culpable homicide amounting to murder. P.W.-1 Dr. Bimal Kumar Verma had held post mortem examination on the body of Lalu Oraon on 4.4.1998 and found the following: External: (a) Lacerated wound on left knee at turn places, (b) Fracture of right femur with hacmatoma, (c) Lacerated wound under side of upper lip 1/4" x 1/4" and (d) Bruise over head at three places until dimension of 1/2" x 1/4", 1/2" x 1/4 and 1/4" x 1/4". Internal: Multiple fractures of right femur with haematoma and clotted blood present. Blood clot present over middle of brain, chest cavity contained no blood. No fracture of ribs. Both lungs intact and pale. Both chambers of heart empty. Lever, spleen, kidneys intact and pale. Urinary bladder empty. 7. According to P.W.-1 Dr B.K. Verma, time elapsed since death was assessed within 48 hours, caused due to shock and hemorrhage on account of brain injuries. He proved post mortem report (Ext.1). The witnesses testified in the cross examination that the injuries found on the person of the deceased were sufficient to cause death which were, in his opinion, were caused by hard and blunt substance. 8. Learned Amicus Curiae empathetically submitted that none of the injuries, as found in the post mortem examination, suggests that it was caused by any fire arm or any lethal weapon or sharp cutting weapon. Prosecution even failed to prove as to what weapon was used in the assault. Admittedly, some blood clots were found in the brain of the deceased and possibility such injuries by falling of the hard surface cannot be ruled out as no impression of weapon was found on his head. Another injury was on the left knee with the fracture of right femur and that the injuries on the head were in the nature of bruise of very small dimension and in any view, were not sufficient to cause death, therefore, if at all any material is found against the appellant Babulal Manjhi, such material does not suggest the charge of culpable homicide amounting to murder. The conviction of the appellant under Section 302 of the Indian Penal Code, therefore, is unsustainable. The conviction of the appellant under Section 302 of the Indian Penal Code, therefore, is unsustainable. Learned Amicus Curiae lastly submitted that the appellant Babulal Manjhi is in custody since 11,4.1998 for about nine years and four months and if at all any offence is made out under the facts and circumstances of case, it is of culpable homicide not amounting to murder under part-II of Section 304 of the Indian Penal Code and not in any manner under Section 302 of the Indian Penal Code and therefore, the judgment of conviction under Section 302 of the Indian Penal Code and order of sentence of life imprisonment recorded against the appellant is fit to be set aside. 9. Mrs. Banani Verma, learned A.P.P., submitted that the substantive materials on record against the appellant Babulal Manjhi in relation to circumstantial evidence were that he visited the quarter of the informant Dasmi Devi in the early morning of 3.4.1998 in search of Lalu Oraon and when he could not find out, returned extending threat, he would not be spared as he had stolen his wrist watch. Informant Dasmi Devi consistently testified the learned amicus curiae pointed out another circumstance that she found her husband in injured condition, in the quarter of the appellant Babulal Manjhi, when the appellant opened the door of his house on knock. She testified that her husband, Lalu Oraon made declaration as to the cause of bleeding injuries that he that he was brutally assaulted by the appellant Babulal Manjhi and that he would not survive. Though she (informant) admitted having not seen the occurrence of assault by the appellant to her husband Lalu Oraon but the circumstances presented in her testimony corroborated by the other witnesses consistently pointed to the guilt of the appellant Babuial Manjhi for the charge he stood for and he was rightly convicted for the offence under Section 302 of the Indian Penal Code, which does not call for interference in appeal. 10. The short question which is posed before us for consideration is as to whether conviction of appellant, under the facts and circumstances of the case is sustainable for the offence under Section 302 of the Indian Penal Code is sustainable? 11. 10. The short question which is posed before us for consideration is as to whether conviction of appellant, under the facts and circumstances of the case is sustainable for the offence under Section 302 of the Indian Penal Code is sustainable? 11. The medical evidence in the form of post mortem examination report (Ext.-l) does not speak any injury on the vital part of the body of Lalu Oraon (since deceased) except three bruises of very small dimension on the head without haematoma or blood clot. Yet, we find certain circumstances as narrated by the informant Dasmi Devi that the appellant Babuial Manjhi had extended threat that he would not spare her husband Lalu Oraon as he had taken away his wrist watch when the appellant visited her quarter in search of her husband and secondly, her husband delivered dying declaration in her presence and in presence of her mother P.W.-3 Fulo Devi that he was assaulted by the appellant and he would not survive. The informant P.W.-2 further added that she found her husband in injured condition with bleeding from his nose and mouth as also from his knee when she visited the house of the appellant and its doors were opened by him. This fact was corroborated by P.W.-3 in her testimony. But, at the same time, we find that had there been any intention of the appellant Babulal Manjhi to commit murder of Lulu Orion inside his quarter with the doors closed from the inside, there was no intervening circumstance to prevent him and the injuries as found on the body of the decease Lalu Oraon in the post mortem report were not on the vital part of the body. Yet we find that the cause of death according to post mortem report and in the opinion of Doctor was shock and haemorrhage on account of injuries of brain (head) and right thigh. We find simple three injuries on the head of the deceased, superficial of very small dimension with under line blood clot. 12. Upon conscious consideration of all the materials on record, we find and observe that the prosecution failed to prove the mensrea and culpability of the appellant Babulal Manjhi of committing homicide amounting to murder of Lalu Oraon for want of his intention to commit so. 12. Upon conscious consideration of all the materials on record, we find and observe that the prosecution failed to prove the mensrea and culpability of the appellant Babulal Manjhi of committing homicide amounting to murder of Lalu Oraon for want of his intention to commit so. On the other hand, his culpability comes within the purview of homicide not amounting to murder in view of attending circumstances coupled with knowledge while making such assault with any hard and blunt object, an offence punishable under Section 304 Part-I of the Indian Penal Code. 13. In the circumstances, the appeal is dismissed, modifying the conviction under Section 304 Part-I of the Indian Penal Code and accordingly, the appellant Babulal Manjhi is sentenced of imprisonment for the period already undergone by him in jail since April, 1998. Me is directed to be released from the custody forthwith, if not wanted in any other case.