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2009 DIGILAW 68 (JHR)

Bosko Hembrom v. State of Bihar ( Now Jharkhand)

2009-01-15

AJIT KUMAR SINHA, R.K.MERATHIA

body2009
JUDGMENT R.K. Merathia, JThis appeal is directed against the judgment dated 7.8.1992, passed by the 1st Additional Sessions Judge Camp at Saraikella in Sessions Trial No. 203 of 1989, convicting the appellant under Section 302 IPC and sentencing him to imprisonment for life. 2. The prosecution case as disclosed in the fardbeyan is as follows:- Gurva Hembrom ( informant-P.W-4) lodged his fardbeyan on 11.11.1988 at about 10.45 P.M. at the police station that-at about 7.30 P.M. his father-Jhore Hembrom ( deceased) was going to visit ‘Bandhna’ festival and when he reached near the house of Mona Hansda ( P.W-2), the appellant having sword in his right hand and bow on his left shoulder and arrows in his left hand, inflicted sword injury on the face of his father, due to which his father fell on the road and blood started oozing. Then the appellant again inflicted sword blow on his neck causing bleeding injuries. On this, he raised alarm but the appellant continued inflicting injuries. On alarm, P.W-2 and others reached there and seeing them the appellant fled away towards his house with his weapons. The persons assembled there had seen the appellant inflicting injuries and fleeing away. The informant saw the occurrence when he was going to sleep in his neighbour’s house after watching festival. On such fardbeyan, FIR ( Ext-3) was registered. 3. Charge-sheet was submitted and cognizance was taken under Section 302 IPC. The case was committed. Charges were framed, read over and explained to the appellant in Hindi, which he denied. 4. The case of the appellant was that he was falsely implicated and had not committed murder. 5. The prosecution examined nine witnesses. P.W-1-Dhanu Manjhi is the witness to the seizure of blood stained soil. P.W-2-Mona Hansda, who was declared hostile, inter alia, said that on the alarm of the informant when he came out of his house he saw that Jhore Hembram was lying dead with injuries on his neck and face. The informant was present but he did not say as to who killed his father. He further said that he accompanied the informant to the police station on the request of the informant along with others and put his signature on the FIR. He also identified the signature of other witness of FIR-Surender Murmu and Sonu Murmu. The informant was present but he did not say as to who killed his father. He further said that he accompanied the informant to the police station on the request of the informant along with others and put his signature on the FIR. He also identified the signature of other witness of FIR-Surender Murmu and Sonu Murmu. He further said that he put his signature on the FIR as he was told to do so by the police at the police station. He neither read it, nor it was read over to him. He signed another paper due to fear of police. He further said that police arrested the appellant in the evening of the occurrence, who confessed his guilt on which he put his signature but the confession was on the pressure of the police. In cross-examination, he said that the dead body of Jhore Hembram was lying on road at the distance of about 6-8 ft. from the door of his house. P.W-3-Kanhu Hansda was also declared hostile. He said that he saw Jhore Hembram dead on the road at the distance of about 25-30 ft. from his house with bleeding injuries on his neck and face. Appellant was present. The villagers also assembled. Informant told him that the appellant has fled away. He identified the appellant in the dock. P.W-4-Gurva Hembrom is the informant. He inter alia said that on the day of occurrence on the eve of festival at about 7 P.M., his father ( deceased) was walking on the road. The informant was going to the house of Chamru for sleeping. When his father reached near the house of P.W-2, the appellant came there with weapons and inflicted injuries on the face of his father, due to which he fell on the road and then he again inflicted injuries by sword on his neck, due to which he died. On his alarm, villagers assembled and seeing them the appellant fled away. He went to police station with P.W-2 and others and got the FIR lodged, which was read over and understood by him and then he put his signature. He identified the appellant in the dock. In cross-examination, he said that when his father was assaulted, this witness was at a distance of about 100 ft. infront of the house of Chamru. He was alone. He identified the appellant in the dock. In cross-examination, he said that when his father was assaulted, this witness was at a distance of about 100 ft. infront of the house of Chamru. He was alone. The occurrence took place in front of the house of P.W-2. He did not ask the appellant as to why he was assaulting his father. His father fell with first assault on his face by sword. He did not go near the place of occurrence, due to fear. When the appellant inflicted second blow on the neck of his father he was still standing in front of the house of Chamru. Chamru was taking meal in his house. P.W-2 and others came to the place of occurrence on his alarm. Chamru did not come. By the time he reached near the place of occurrence, his father was dead. His father did not take meal in the night but he was walking after taking liquor. The appellant had gone to his in laws house on the date of occurrence, which was about 5 -7 kilometers from the village and returned in the evening. After the occurrence, he did not go to the house of the appellant. The police and the villagers went to the house of the appellant but he was not in his house. He denied that the appellant returned to his home at about 12 in the night. He denied to have implicated the appellant falsely due to land dispute. P.W-5-Man Singh Gope who was also declared hostile, said that he heard from others that the appellant had killed the deceased. The sword was recovered from the house of the appellant but this witness denied his signature on the seizure list of the sword or that it was recovered at the instance of the appellant from his house. P.W-6-Mangal Manjhi said that the informant and others told him that the appellant killed his father. His house was at the distance of 8-10 ft. from the place of occurrence. When he reached there he found the informant, P.W-2 and others present. P.W-7-Karan Murmu is a tendered witness. P.W-8 is the doctor-Arun Kumar Gupta, who conducted the postmortem report on 11.11.1988 at about 3 P.M. and found the following anti mortem injuries. “(i) Incised wound 6”x 2”x involving bones above the left eye brow. It was tranvurse. When he reached there he found the informant, P.W-2 and others present. P.W-7-Karan Murmu is a tendered witness. P.W-8 is the doctor-Arun Kumar Gupta, who conducted the postmortem report on 11.11.1988 at about 3 P.M. and found the following anti mortem injuries. “(i) Incised wound 6”x 2”x involving bones above the left eye brow. It was tranvurse. (ii) Incised wound 4”x2” x muscle deep on just below the chin”. He has further deposed that on dissection he found that parital bone and frontal bone were cut through. Maninges were cut through and brain matters were involved. He further deposed that Thorax, abdomen, ribs were intact, heart and lungs were also intact. Stomach was empty, bladder was also empty and liver, kidney and spleen were intact. He opined that the death was due to shock and haemorrhage due to involvement of brain matter in injuries. He further opined that injury no. (i) and ( ii) were caused by sharp edged weapon which may be a sword and the injury no. (i) was sufficient to cause death in ordinary course of nature. He also proved his post-mortem report which was marked Ext.-2. In cross-examination he deposed that he had found only two injuries on the dead body of the deceased which might have been caused by inflicting two blows. He further said in the cross examination that he did not find any other injury. He further said that both the injuries can be possible by sharp edged stones also. 6. Learned counsel for the appellant submitted that the independent witnesses have been declared hostile and the prosecution has not proved the case to the hilt. He further submitted that the motive has not been proved and the informant suppressed the true story. 7. P.Ws.2, 3 and 5 have been declared hostile. P.W.-6 is a hearsay witness. P.W.-7 is a tendered witness. P.W-1 is a seizure list witness. From the materials available on the record, it is clear that the appellant had inflicted injuries on the deceased with sharp cutting weapon, first on his face, and when he fell on the ground then on his neck. P.W.-2, P.W-3 and P.W-8 have corroborated the evidence of P.W-4 and also the said injuries. P.W-2 admitted that he and others put their signatures on the fardbeyan. It has also come in evidence that at the place of occurrence, the appellant was present. P.W.-2, P.W-3 and P.W-8 have corroborated the evidence of P.W-4 and also the said injuries. P.W-2 admitted that he and others put their signatures on the fardbeyan. It has also come in evidence that at the place of occurrence, the appellant was present. The trial court rightly held that the appellant had killed the deceased. 8. It is true that the appellant caused repeated injuries by sharp cutting weapon on the vital parts of the body of the deceased due to which he died, but it is necessary to examine whether this is a case of murder or culpable homicide not amounting to murder. Unfortunately, the Investigating Officer has not been examined in this case. The trial court did not attach importance to the confessional statement. It was not proved. Though, P.W-2 said that the appellant was forced to make confessional statement and that this witness put his signature on the same at the instance of the police, but in order to find out the truth, the confessional statement was looked into by us. In his confessional statement, the appellant admitted that he killed the deceased, but he also said that the deceased, who was his uncle, quarreled with the mother of the appellant and when she told about the same, the appellant went to ask the deceased about the quarrel; and that when he met the deceased near the house of P.W-2, the deceased wanted to assault the appellant by wood; on which the appellant rushed to his house, brought sword and chased the deceased and assaulted him in front of the house of P.W-2, due to which he died; and that on seeing the villagers coming to the place of occurrence, he fled away; and that he threw the sword at a lonely place; and that as advised by the people, he was returning to his house, when he was arrested; and that he could not tolerate abuses hurled to his mother by his uncle ( the deceased) and therefore he killed him. This confessional statement was signed by the appellant. P.W-2-Mona Hansda has signed the same as one of the witness. One Sano Murmu and Surender Murmu have also signed the same as witness. P.W-2 had accepted that he accompanied the informant to the police station along with Sano Murmu and Surendra Murmu. This confessional statement was signed by the appellant. P.W-2-Mona Hansda has signed the same as one of the witness. One Sano Murmu and Surender Murmu have also signed the same as witness. P.W-2 had accepted that he accompanied the informant to the police station along with Sano Murmu and Surendra Murmu. It is true that the said confession has not been proved and that the Investigating Officer ( I.O.) has not been examined in this case but only for that reason the confessional statement cannot be over looked, specially when the prosecution withheld the motive for the incident. Regarding the scope of Section 172(2)-Cr.P.C., the case reported in AIR 1954 SC 51 -Habeeb Mohammad Vs. State of Hyderabad, is relevant. In the said case, there was delay in investigation and the diary was not brought on the record by the Investigating Officer. However, the trial court called for the same and used it for corroborating the prosecution evidence. In paragraph 13 of the judgment, it was observed as follows:- “ Section 172 provides that any criminal court may send for the police diaries of a case under inquiry or trial in such court and may use such diaries, not as evidence in the case ‘but to aid it in such inquiry or trial’. It seems to us that the learned Judge was in error in making use of the police diaries at all in his judgment and in seeking confirmation of his opinion on the question of appreciation of evidence from statements contained in those diaries. The only proper use he could make of these diaries was the one allowed by S. 172, Cr. P.C. i.e. during the trial he could get assistance from them by suggesting means of further elucidating points which needed clearing up and which might be material for the purpose of doing justice between the State and the accused”. In the facts and circumstances and the legal position, noted above, we are inclined to use the confessional statement of the appellant as an aid/ assistance for elucidating the story and for doing justice in this appeal, which is continuation of the trial. In the case reported in AIR 1952 SC 354 -Palvinder Kaur Vs. In the facts and circumstances and the legal position, noted above, we are inclined to use the confessional statement of the appellant as an aid/ assistance for elucidating the story and for doing justice in this appeal, which is continuation of the trial. In the case reported in AIR 1952 SC 354 -Palvinder Kaur Vs. The State of Punjab, it is held that confession and admission must either be accepted as a whole or rejected as a whole and the Court is not competent to accept only the inculpatory part while rejecting the exculpatory part. From the confessional statement of the appellant, the present case appears to be a case of culpable homicide not amounting to murder and it comes under Exception 1 of Section 300 of the Indian Penal Code. P.W-4, the son of the deceased himself said that the deceased was walking after taking liquor. In the confessional statement, the appellant had said about the quarrel between the deceased and his mother and that when he went to talk with the deceased about the quarrel, the deceased is said to have tried to assault the appellant; on which he rushed to his house, bought sword and inflicted fatal injuries on the deceased. It appears that the appellant was deprived of the power of self control by grave and sudden provocation. As per the case of the prosecution, the appellant had some quarrel with the deceased in view of the fact that the deceased had hurled abuses to his mother and when the appellant questioned the same the deceased fought with him and attempted to assault the appellant with a stick and due to grave and sudden provocation and on being felt insulted the appellant rushed to his house and brought a sword and inflicted fatal injuries on the deceased. Thus this is a case of culpable homicide not amounting to murder as the appellant was deprived of his power of self control by grave and sudden provocation which lead to the cause of death because of being provocated and thus it will fall under Exception-1 to Section 300 of the Indian Penal Code and should be sentenced under Section 304 Part-1 of the Indian Penal Code. 9. In such circumstances, we are inclined to convert the conviction under Section 304 part I of the Indian Penal Code. 9. In such circumstances, we are inclined to convert the conviction under Section 304 part I of the Indian Penal Code. On the question of sentence, it appears that the occurrence took place about 20 years back. The trial court also observed that there was no previous planning for the commission of the offence and that the motive of committing the murder has not been brought on the record. The appellant was granted bail about 15 years back i.e. on 24.3.1993 in this appeal after remaining in jail for more than four years. In our opinion, it will not be proper to send the appellant to jail at this stage, to serve out any further sentence. In these circumstances, we are inclined to sentence him to the period already undergone. In the result, this appeal is disposed of with the modification in conviction and sentence as aforesaid. The appellant is discharged from his bail bond.