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2010 DIGILAW 40 (JHR)

Ram Dhani Hemrom v. State of Jharkhand

2010-01-07

PRADEEP KUMAR

body2010
JUDGMENT By Court, This appeal is directed against the judgment of conviction and order of sentence dated 2.6.2001 passed Dhananjay Prasad Singh, Sessions Judge, Dumka in Sessions Trial No. 76 of 1992, by which judgment the learned Sessions Judge found all the four appellants guilty under Section 304 part-2 of the Indian Penal Code as also under Section 148 of the Indian Penal Code and sentenced the appellant no.1, Ram Dhani Hemrom to undergo R.I. for 7 years under Section 304 part-2 of the Indian Penal Code and 2 years under Section 148 of the Indian Penal Code. He also sentenced the appellant no.2, Satto Hemrom to undergo R.I. for 10 years under Section 304 part-2 of the Indian Penal Code and 3 years under Section 148 of the Indian Penal Code. He also sentenced the appellant nos. 3 & 4, namely, Rasomani Hemrom and Munni Murmu since they were ladies and not participated in the assault and hence sentenced to undergo R.I. for 3 years under Section 304 part-2 of the Indian Penal Code and 1 year under Section 147 of the Indian Penal Code. 2. It is submitted by the learned counsel for the appellants that the main accused, Satto Hemrom against whom there is direct allegation that he assaulted the deceased with 'tangi' on his head as also on his knee, causing his death, has already remained in jail custody for more than 10 years and as such he has remained in custody for more than the sentence. As far as other appellants are concerned the trial court himself found that two ladies appellants, Rasomani Hemrom and Munni Murmu did not participate in assaulting the deceased, Shyamlal Marandi and still the trial court convicted them as there is evidence of enmity between the parties from before and there is a case and counter case. He has further submitted that there is allegation that the deceased was assaulted by 'lathi' by two persons, Ram Dhani Hemrom and Mihilal Hembrom and both have been convicted under Section 304 part-2 of the Indian Penal Code and also under Section 148 of the Indian Penal Code. There is no positive evidence of injury on the tip of the thumb. There is no positive evidence of injury on the tip of the thumb. In that view of the matter, the appellant no.1, Ram Dhani Hemrom is also entitled to get benefit of doubt like the other two other accused, Basudeo Bhandari and Henod Hembrom, who were acquitted by the trial court. 3. Learned counsel for the State has opposed the prayer and submitted that as per the evidence of the prosecution witnesses all the four appellants had assaulted Shyamlal Marandi and as such they have rightly been found guilty under Sections 304 part- 2 of the Indian Penal Code and also under Section 148 of the Indian Penal Code. 4. After hearing both the parties and going through the record, I find that the prosecution case was started on the basis of a Fardbeyan given by the informant, Ramani Marandi, who was subsequently examined as P.W.8 stating therein that on 23rd November, 1990 the informant, Ramani Marandi had gone to take out wooden structure of door from her old house situated in mouza Bagjori P.S. Mihijam Jamtara when she was objected by accused, Rasomani and Munni Murmu. According to her version when she protested asserting that the house belonged to her. On this, the informant was assaulted by the female accused with lathi. On her alarm, her husband, Shyamlal Marandi came there to save her. Whereupon, the accused, Ramdhani, Satto, Mihilal reached the place of occurrence variously armed and they started assaulting her husband. She further stated that Satto Hembrom assaulted her husband with 'tangi' on his head and knee, while Ramdhani and Mihilal assaulted with 'lathi'. Thereafter, they fled away. The injured was taken to hospital and subsequently he died. 5. On the basis of said fardbeyan the police registered a case under Sections 147, 148, 149, 341, 323 and 307of the Indian Penal Code and subsequently after the death Section 302 of the Indian Penal Code was added. After investigation police submitted charge-sheet under Sections 147, 148, 149, 324, 323, 379, 307 and 302 of the Indian Penal Code. 6. On the basis of said fardbeyan the police registered a case under Sections 147, 148, 149, 341, 323 and 307of the Indian Penal Code and subsequently after the death Section 302 of the Indian Penal Code was added. After investigation police submitted charge-sheet under Sections 147, 148, 149, 324, 323, 379, 307 and 302 of the Indian Penal Code. 6. Since, the case was exclusively triable by a court of Sessions the learned Chief Judicial Magistrate after taking cognizance of the case, committed the same to the court of Sessions and the Sessions Court after framing charges against all the accused persons, put them on trial and finally the learned Sessions Judge found the appellants guilty as aforesaid and convicted them. 7. It appears that in course of trial the prosecution has examined 14 witnesses. P.W.1, Sonalal Marandi, P.W.2, Binod Soren, P.W.3, Suru Marandi, P.W.4, Dr. Arun Kumar Chakra borty, P.W.5, Anil Murmu, P.W.6, Pancha Nand Bhandari, P.W.7, Guhi Ram Bhandari, P.W.8, Ramani Marandi-informant, P.W.9, Gobardhan Bhandari, P.W.10, Dr. Tapan Kumar Biswash, who conducted the post-mortem examination on the dead body of the deceased, P.W.11, Shankar Prasad Ghue, P.W.12, Lakhi Narayan, P.W.13, Janardhan Singh and P.W.14, Pradeep Kumar Verma. 8. It is important to note that the informant, in her evidence, has supported her case and stated that on the date of occurrence when she had gone to her old house for taking out the fire woods then the female accused Rasmani and Munni came there and objected, on which she was assaulted by both the ladies. On hearing hullah, her husband came to save her. Then, on her alarm, her husband, Shyamlal Marandi came there to save her. Whereupon, the accused, Ramdhani, Satto, Mihilal reached the place of occurrence with variously armed with lathi and tangi. The accused, Satto Hembrom had tangi in his hand while the other accused had lathi in their hand. It is stated that Satto Hembrom gave a tangi blow on the head of deceased, Shyamlal Marandi and again gave a tangi blow on his right leg knee, while Ramdhani, Satto, Mihilal gave a lathi blow on him. The other did not participate in the assault. 9. Similar statement has been given by other eye witnesses, namely, P.Ws. It is stated that Satto Hembrom gave a tangi blow on the head of deceased, Shyamlal Marandi and again gave a tangi blow on his right leg knee, while Ramdhani, Satto, Mihilal gave a lathi blow on him. The other did not participate in the assault. 9. Similar statement has been given by other eye witnesses, namely, P.Ws. 1 to 7, have also stated same thing, that Satto Hembrom gave a Kulhari blow one on the head and another blow on right leg knee, while Ramdhani and Mihilal gave lathi blow. 10. The doctor-P.W.4, Dr. Arun Kumar Chakraborty, who examined the deceased, found only three injurieson the person of the deceased:- (i) An oblique bleeding incised wound 3"x1" muscle deep cutting important blood vessels and structures one posterior aspect of right knee joint around poplitial; (II) one lacerated wound 3"x1/2", muscle deep over palmer aspect of tip of right thumb (III) One vertical lacerated wound with zig gag margin 2 1/2" x 1/2"x scalp deep over middle of scalp. In the opinion of the doctor the injury no.1, which is grievous in nature and other injures were simple in nature. The injury report was proved as Ext. 1. 11. After postmortem the doctor, Dr. Tapan Kumar Biswash as P.W.10 found the following injuries on the dead body of the deceased: (I) One stitched up wound scalp 2"x1/2"; (ii) Stitched up wound 8"x1/2" left head. In the opinion of the doctor the death was due to injuries, which were ante-mortem in nature. 12. Thus, it is found that the only person, who assaulted the deceased, Shyamlal Marandi is Satto Hemromal though it is stated by the witnesses that Ramdhani, Mihilal assaulted with lathi, but it is difficult to say that who caused injury on the right thumb tip, which was not found by the doctor during post-mortem examination. 13. In that view of the matter, in my opinion, the conviction of accused-appellant, Satto Hemrom under Section 304 Part-2 of the Indian Penal Code as also under Section 148 of the Indian Penal Code is maintained and he is found guilty under both counts. However, admittedly the appellant no.3 & 4, Rasomani Hemrom and Munni Murmu did not participate in assaulting the deceased, hence their conviction is bad in law also conviction of appellant no.1, Ram Dhani Hemrom is doubtful. However, admittedly the appellant no.3 & 4, Rasomani Hemrom and Munni Murmu did not participate in assaulting the deceased, hence their conviction is bad in law also conviction of appellant no.1, Ram Dhani Hemrom is doubtful. Since, it is difficult to say that whether he caused the injury on the thumb. In that view of the matter, the appellant no.1, Ram Dhani Hemrom and appellant no.3, Rasomani Hemrom and appellant no.4, Munni Murmu are acquitted from the charges levelled against them. 14. It is submitted by the learned counsel for the appellants that appellant no. 2, Satto Hemrom, who has been sentenced to undergo R.I. for 10 years under Section 304 part-2 of the Indian Penal Code and also for 3 years under Section 148 of the Indian Penal Code, which were directed to run concurrently, has already remained in jail for more than 10 years since he remained in custody during trial from 24.11.1990 till 5.10.1994 and therefore again he is in custody after judgment from 2.6.2001 till date. In that view of the matter, if he has already completed his sentence during trial and appeal, the trial court will verify the same and if he has already served out the sentence the trial court will pass an order for his release immediately The appellant no. 1, Ram Dhani Hemrom, appellant no.3, Rasomani Hemrom and appellant no.4, Munni Murmu are on bail, they are released from the bondage of their bail bond. 15. Accordingly, the appeal is allowed in part.