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2009 DIGILAW 982 (JHR)

Sushil Hembram v. State of Jharkhand

2009-07-17

AMARESHWAR SAHAY, R.R.PRASAD

body2009
JUDGMENT By Court The appellant has filed this appeal from Jail challenging the conviction and sentence passed by the Trial Court vide Judgment dated 28.01.2003 is Sessions Trial No. 126 of 1999 whereby, he has been found guilty for committing the murder of Solma Soren by stabbing into her abdomen by means of ‘Chura’ and thereby has been convicted for committing offence under Section 302 of the Indian Penal Code and has been awarded the sentence of imprisonment for life. 2. The prosecution story in short is that the informant Churka Soren (not examined since deceased), father of the deceased Solma Soren (deceased), gave a Fardbayan on 28.04.1999 (Wednesday) stating therein that his daughter Solma Soren, aged about 20 years, who was married two years ago, was not willing to live in her in-laws place and hence, after one year of her marriage, she returned to her father’s house and started living there. He further stated that since last 8 – 10 months, she got intimacy with Sushil Hembram (appellant). Although they did not marry but they were living as husband and wife as per Santhal customs. Sushil Hembram used to visit the house of the informant and used to stay with Solma Soren as her husband. On 27.04.1999 (Tuesday), at about 6:00 P.M., Sushil Hembram (appellant) came to the house of the informant and stayed there in the night. It is said that after dinner in the night, all the family members went to sleep. At about 3:00 A.M. in the night, hearing the cry of Solma Soren, the informant and other family members woke up and then saw that Solma Soren was stabbed in her abdomen. On being asked, she told them that Sushil Hembram (appellant) stabbed her after some quarrel, when she did not agree to go to his village Lakra Pahari with him. Solma Soren was brought to the Sadar Hospital, Dumka where she was declared dead by the Doctor. 3. On the Fard Bayan of the informant, F.I.R. was registered and the Police took up the investigation. On completion of investigation, the chargesheet was submitted under Section 302 of the Indian Penal Code against the appellant, on the basis of which cognizance was taken, and thereafter, the case was committed to the Court of Sessions, where the charge was framed to which he denied and thereafter, he was put on trial. 4. On completion of investigation, the chargesheet was submitted under Section 302 of the Indian Penal Code against the appellant, on the basis of which cognizance was taken, and thereafter, the case was committed to the Court of Sessions, where the charge was framed to which he denied and thereafter, he was put on trial. 4. In order to establish the charges, altogether nine witnesses were examined on behalf of the prosecution. As it appears that there is no witness to the actual assault said to have been made by the appellant. 5. P.W.-1 Paltan Soren is the Brother of the deceased, P.W.-4 Yenosh Tudu is the cousin of the deceased, P.W.-5 Parmeshwar Soren is also the brother of the deceased, P.W.-6 Sundari Murmu is a friend of the deceased and P.W.-7 Basomuni Murmu is the mother of the deceased, all of them have stated that hearing the cries of Solma Soren, they woke up and saw that Solma Soren had been stabbed on her stomach and on being asked by these P.Ws., she disclosed that she was stabbed by the appellant. P.W.-8 Sujata Kumari is the Investigating officer and P.W.-9 Dr. Binay Saran who held the post mortem of the dead body of the deceased. P.W.-5 Parmeshwar Soren (Brother of the deceased), P.W.-6 Sundari Murmu (friend of the deceased) and P.W.-7 Basomuni Murmu (mother of the deceased) have also stated that after chase, they also caught hold of the appellant and then he was brought to the Police Station. 6.The Investigating Officer, in her evidence, has stated that in course of investigation, the informant produced a ‘Chaku’ which was allegedly used in commission of crime. The Investigating Officer seized the said knife (Chaku) and prepared the seizure list in which, Emanual Marandi (P.W.-2) and Sushil Hembram put their signatures. In course of trial, the said seizure list was marked Ext.-4. 7.The Doctor (P.W.-9), who held the post-mortem examination on the dead body of the deceased found the following injury on her person:- An incised wound 1 ½” x ¼”, abdomen deep over left side of the abdomen upper quadrant. On dissection peritoneum was incised at dominal cavity and full of blood. About two litres of blood was inside the abdomen cavity. Spleen was also found ruptured. According to the Doctor, the weapon used was the sharp cutting pointed weapon and the time elapsed since death was within six hours. On dissection peritoneum was incised at dominal cavity and full of blood. About two litres of blood was inside the abdomen cavity. Spleen was also found ruptured. According to the Doctor, the weapon used was the sharp cutting pointed weapon and the time elapsed since death was within six hours. He also stated that the injuries may have been caused by the knife. From the evidence of the Doctor, it is established that the death of the deceased was caused due to the injuries received in her abdomen by means of a ‘Chura’, a sharp cutting pointed weapon. 8.Mr. K.S. Nanda, learned Amicus Curiae, appearing on behalf of the appellant submitted that there is no eye witnesses to the occurrence and the prosecution did not examine any independent witness to establish its case. He further submitted that circumstantial evidence are not such, which conclusively point out towards the guilt of the appellant and therefore, he is entitled to be acquitted. Alternatively, he argued that even if it is held that the injuries on the deceased was caused by this appellant, then also the present case would fall at least within the purview of Section 304 Part – II of the Indian Penal Code and not Section 302 of the Indian Penal Code, and further that the appellant has already remained in custody for more than ten years and therefore, the sentence is liable to be reduced to the period already undergone by him. 9.We have scrutinised the whole evidence led by the prosecution but find no reason to disbelieve the evidence of P.Ws.-1, 4, 5, 6 and 7 who all have consistently stated that they all were sleeping in their house and they wake up on hearing the cries of Solma Soren and then they saw that she had been stabbed by a ‘Chura’ on her abdomen and on their query, she disclosed that the appellant had given her ‘Chura’ blow on her abdomen when she refused to go with him to his village. All these witnesses were present in the house and since the occurrence took place in the dead hours of the night and therefore, at that time, only the inmates of the house are expected to be present at the place of occurrence. P.Ws. All these witnesses were present in the house and since the occurrence took place in the dead hours of the night and therefore, at that time, only the inmates of the house are expected to be present at the place of occurrence. P.Ws. – 5, 6 and 7 have also clearly stated that they chased and caught hold of the appellant and brought him to the Police Station. From the evidence of the Investigating Officer, it also appears that the weapon used in commission of the crime i.e. Chura was also recovered and seized by him. The motive behind the occurrence is also established from the evidence of the prosecution witnesses that the deceased was not willing to go to the village of the appellant with him which infuriated him and therefore, he stabbed the deceased on her abdomen by means of ‘Chura’. 10.From the evidence of the prosecution evidence noticed above, it is amply clear that the prosecution has been able to establish the fact that it was the appellant who caused injury on the abdomen of the deceased by means of ‘Chura’ resulting into her death. 11.The question as to whether the case would fall under the purview of Section 304 Part-II of the Indian Penal Code, we find from the nature of injuries as well as the manner of occurrence that the present case does not come within any of the exceptions of Section 300 of the Indian Penal Code, therefore, the prosecution would not come under the purview of Section 304-II I.P.C. According to us, the learned Trial Court rightly held the appellant guilty for the offence under Section 302 of the Indian Penal Code and thereby sentenced him to undergo R.I. for life. 12.In view of the above discussions and findings, we are of the view that the learned Trial Court did not commit any error in convicting and sentencing the appellants for committing offence under Sections 302 of the Indian Penal Code. Accordingly, the conviction and sentence passed by the Trial Court against the appellant is hereby affirmed and the appeal is dismissed.