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2009 DIGILAW 720 (JHR)

Maheshlal Hembrom v. State of Bihar

2009-05-07

AMARESHWAR SAHAY, R.R.PRASAD

body2009
JUDGMENT By Court.-Both these Jail appeals arising out of the same impugned judgment were heard together and are being disposed of by this common judgment. 2. Appellants of both the appeals having been convicted for an offence under Section 302/34 of the Indian Penal Code for committing murder of one Dewan Soren were sentenced to undergo imprisonment for life. 3. The case of the prosecution is that on 7.10.1995 while most of the villagers had gone to a fair, the appellant Maheshlal Hembrom at about 5-6 P.M. took Dewan Soren to the house of his sister, Jaimani Hembrom, the other appellant where the deceased was made to consume liquor and then these two appellants as well as Chunku Hembrom and Shibu Hembrom assaulted the deceased with lathi, as a result of which the deceased died in the court-yard of the appellant Jaimani Hembrom. 4. On receiving the rumour that one person has been done to death at Village-Kamoddumania, Girish Kumar Ambast (P.W. 12), Officer-in-Charge of Jama Police Station entered the said information in the station diary and proceeded to the place of occurrence where he reached at about 11 P.M: where informant Makku Murmu (P.W. 11) wife of the deceased gave her Fardbeyan (Ext. 4) stating therein that husband of appellant Jaimani Hembrom had been to Assam for earning his livelihood but the appellant Jaimani Hembrom carried impression that the informant by practicing witchcraft has done something which has influenced the thought process of her husband as a result of which he has not been returning home end due to this reason, the appellant committed murder of her husband in the manner stated above. After recording the Fardbeyan (Ext. 4) the said Girish Kumar Ambast (P.W. 12) himself took up the investigation of the case and on the same night raided the house of the appellant Jaimani Hembrom where he found the dead body of Dewan Soren in the courtyard of the appellant. The Investigating Officer, Girish Kumar Ambast (P.W. 12) by deputing Choukidar at the place of occurrence, proceeded to arrest the accused persons to whom they arrested from a lonely place where they had hided themselves in a bush. The next day, i.e., on 8.10.1995 the Investigating Officer Girish Kumar Ambast (P.W. 12) came to the place of occurrence and held inquest on the dead body and prepared Inquest Report {Ext. The next day, i.e., on 8.10.1995 the Investigating Officer Girish Kumar Ambast (P.W. 12) came to the place of occurrence and held inquest on the dead body and prepared Inquest Report {Ext. 6) and sent the dead body for post mortem examination which was done by Dr. Nand Kishore Shahu (P.W. 1), who on examination found the following injuries on the person of the deceased: - 1. Diffused swelling over the fore head.-0n dissection, fracture of frontal bone was found. On further dissection, brain and meninges were found lacerated. 2. Ecchymosis over the front of the right side of chest. - On dissection, fracture of second and third ribs of right side of chest were found. On further dissection, pleura and lungs were found ruptured. 3, Diffused swelling over the right forearm With fracture of both radius and ulna. 4. Lacerated wound 3" x 2" x bone deep over the right leg with fracture of both tibia and fibula. 5. Abrasion 3" x 2" three in number over the left gluteal region. 5. Accordingly, Dr. issued post mortem examination report (Ext. 1) with an opinion that death was caused due to shock and haemorrhage, as a result of injury nos. 1 and 2 which were sufficient enough to cause death. 6. After completion of the investigation, police submitted charge-sheet against these two appellants as well as two other persons. Accordingly, cognizance of the offence was taken and in due course when the case was committed to the court of sessions, charges were framed to which the appellants pleaded not guilty and claimed to be tried. 7. The prosecution in this case has examined altogether 12 witnesses. Of them, Makku Murmu, the informant (P.W. 11) is an hearsay witness, though she in her Fardbeyan had claimed to have seen accused persons assaulting the deceased but she in course of evidence has testified that when she came back after visiting fair, she saw the dead body in the courtyard of the appellant Jaimani Hembrom where she was told by one of the witnesses that accused persons have committed murder of her husband. Similar is the case with P.W. 4 Mohan Soren, son of the deceased and P.W. 8 Muniya Soren, daughter of the deceased, who have testified that when they returned back after visiting fair, they saw the dead body at the court-yard of the appellant Jaimani Hembrom. P.Ws. Similar is the case with P.W. 4 Mohan Soren, son of the deceased and P.W. 8 Muniya Soren, daughter of the deceased, who have testified that when they returned back after visiting fair, they saw the dead body at the court-yard of the appellant Jaimani Hembrom. P.Ws. 5 and 6, Budhan Kishku and Rajan Kishku are the witnesses to the inquest, P.W. 3, Balmuni Marandi, PW. 9, Sanidi Tudu and P.W. 10, Thakurain Kishku have claimed themselves to be the eye witnesses to the occurrence. 8. The trial court having relied on the testimonies of the aforesaid three eye witnesses getting corroboration by the medical evidence, recorded the order of conviction and sentence as aforesaid. 9. Being aggrieved with the judgment of conviction and order of sentence, these two Jail appeals have been preferred by the appellants. 10. Learned counsel Mr. D.H. Waris appointed as amicus curiae submits that as per the statement made by the informant (P.W. 11) in her Fardbeyan (Ext. 4), the deceased was assaulted with lathi and was also inflicted with injury by sickle but the Dr. never found any sharp cut injury on the person of the deceased and as such, entire case edifice of which has been raised upon the Fardbeyan gets falsified, still the trial court convicted the appellants and as such impugned judgment is fit to be set aside. 11. It was further submitted that the trial court has placed its implicit reliance on the testimonies of the eye witnesses, P.Ws. 3, 9 and 10 but the testimonies of the witnesses are contradictory to each other and hence, they are not worth reliable. 12. Heard learned counsel appearing for the State also. 13. Having heard learned counsel appearing for the parties and on perusal of the record, we do find that the informant (P.W. 11), though as per the statement made in the Fardbeyan claimed herself to be one of the eye witnesses but as per her evidence, she had no occasion to see the accused persons assaulting the deceased as, according to her, when she returned back after visiting fair, she saw the dead body in the court-yard of the appellant Jaimani Hembrom. 14. 14. However, from the evidences of the eye witnesses it appears that Balmuni Hembrom (P.W. 3), Sanidi Tudu (P.W. 9) and Thakurain Kishku (P.W. 10) saw the accused persons taking the deceased to their house where he was assaulted indiscriminately. All these witnesses have categorically testified that the deceased was assaulted with lathi which gets corroboration from the medical evidence as Dr. has found the injuries on the person of the deceased' all caused by hard and blunt substance. 15. It would be worthwhile to mention here that informant (P.W. 11) in her Fardbeyan has stated that one of the accused inflicted injury on the person of the deceased by sickle but that statement will have no adverse effect in view of the fact that the informant was never the eye witness to the occurrence. 16. We do further find that the testimonies of the eye witnesses get corroboration from the objective finding of the Investigating Officer as he did find the dead body of the deceased in the courtyard of the appellant Jaimani Hembrom where he also found blood on the floor as well as over the wall, for which no explanation whatsoever has come forth from the side of the defence. That apart, conduct of the appellants of hiding themselves behind the bush after the occurrence goes to show about the culpability of the appellants. 17. Thus, we do find that the prosecution has been able to establish the case beyond all reasonable doubt and hence, we do not find any illegality in the order passed by the trial court finding the appellants guilty of the charges. Accordingly, it is hereby affirmed. 18. In the result, these two appeals are dismissed.