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2014 DIGILAW 1063 (JHR)

Betta Murmu v. State of Jharkhand

2014-10-20

R.R.PRASAD, RONGON MUKHOPADHYAY

body2014
ORDER : Heard learned counsel appearing for the appellant and the learned counsel appearing for the State. 2. It is the case of the prosecution that while the informant PW6 Tribhuwan Murmu and his two sons Daniel Murmu and Betta Murmu (appellant), were fixing wooden poles over the land adjacent to the house of the informant (PW6), uncle as well as father of the informant, raised objection over fixing of wooden poles. That led to altercation in between the family members of the informant and accused persons. Meanwhile, on hearing hulla Merang Mai, cousin sister of the informant came out of the house, who started hurling abuses upon the wives of Tribhuwan Murmu and Daniel Murmu. Upon it, Tribhuwan Murmu exhorted his son to kill them. Thereupon, this appellant inflicted injury over the back of Marang Mai. She fell down and then the appellant again inflicted injuries on her. Seeing all these things, the informant and other persons ran away towards the house of Jetha Murmu. The accused persons came chasing the informant and entered into the house of Jetha Murmu, where the appellant and other co-convicts killed Sidhram Murmu, the uncle of the informant. Later the accused persons also killoed Deva Murmu, the father of the informant. 3. On such accusation, an FIR was lodged as Ranga P.S. Case No. 48 of 2006 under Sections 302/34 of the Indian Penal Code against this appellant and other four persons, the father, mother, brother and sister-in-law (Bhabhi) of the appellant. The matter was taken up for investigation. After investigation, charge sheet was submitted against this appellant and four others, who were put on trial. During trial, two persons namely Marang Kui Tudu and Lakhi Besra were acquitted, whereas this appellant as well as his father and brother were convicted on the basis of the evidences of the informant PW6 an injured witness and the other eyewitnesses PWs. 1, 2 and 3. 4. This appellant and other co-convicts having been convicted, were sentenced to undergo R.I. for life for the offence punishable under Sections 302/34 of the Indian Penal Code and also to pay a fine of Rs. 5000/. Further the appellant was sentenced to undergo R.I. for three years for the offence punishable under Section 324 of the Indian Penal Code. 5. This appellant and other co-convicts having been convicted, were sentenced to undergo R.I. for life for the offence punishable under Sections 302/34 of the Indian Penal Code and also to pay a fine of Rs. 5000/. Further the appellant was sentenced to undergo R.I. for three years for the offence punishable under Section 324 of the Indian Penal Code. 5. Being aggrieved with the judgment of conviction dated 07/12/2009 and order of sentence dated 16/12/2009, passed in Sessions Case No. 84 of 2007 (S.T. No. 136/2007), this appeal has been preferred by the appellant. Other co-convicts have preferred another appeal. 6. During pendency of the appeal, an application was filed under Section 7 A of the Juvenile Justice (Care and Protection of Children) Act, before this Court taking a plea that this appellant, on the day of occurrence, was juvenile and hence, the prayer was made to hold a inquiry. The prayer was allowed. Accordingly, an inquiry was held first by the Sessions Judge, Sahebganj, wherein the Sessions Judge, after placing reliance on the medical report of the Board of Doctors, did hold that the appellant was aged about 2225 years on the date of the examination, i.e. January, 2011. Accordingly, the report was submitted before this Court, to the effect that the appellant was not juvenile on the date of occurrence. Upon receipt of the report, an objection was taken on the point that the said report of the Medical Board is never in consonance with the provisions contained in Clause (iv) of Subrule 5 of Rule 22 of the Jharkhand Juvenile Justice Rules as the margin of the age given by the Medical Board was more than 1 year. The objection taken was upheld and an order was passed for examination of the appellant by the panel of the Doctors of RIMS. Board was constituted, whereby it was reported that the appellant, on the date of examination, was aged about 2223 years old. Accordingly, it was found by this Court that on the date of occurrence, i.e. 05/10/2006, the age of the appellant would have been 17 years, 2 months 6 days. Accordingly, the appellant was held juvenile vide order dated 14/10/2014. 7. Mr. Accordingly, it was found by this Court that on the date of occurrence, i.e. 05/10/2006, the age of the appellant would have been 17 years, 2 months 6 days. Accordingly, the appellant was held juvenile vide order dated 14/10/2014. 7. Mr. Gautam Kumar, learned counsel appearing for the appellant submits that he would not be challenging the order of conviction, rather he would confine his challenge to the order of sentence as the sentence imposed is much more than what has been prescribed under Section 15 of the Juvenile Justice Act, whereby maximum punishment what has been prescribed is 3 years whereas this appellant has been in custody since 12/10/2006, i.e. more than 8 years. 8. Learned counsel in support of his submission has referred to a decision rendered in a case of Lakhan Lal versus State of Bihar AIR 2011 SC 842 as well as in the case of Shyam Pado Mandal versus State of Jharkhand 2014 (1) East. Cr. C. 613 (Jhr.) and also a decision of this Court rendered in a case of Upendra Paswan versus State of Jharkhand Cr. Appl. (DB) No. 905 of 2009, whereby this Court after taking notice of the several decisions, did hold as under: “Thus, what has emerged out is that if the question of juvenility has been raised for the first time before the appellate court, it needs to be gone into by the court as to whether the trial court was justified in recording the order of conviction and sentence. Accordingly, we have to examine in this case as to whether the order of conviction recorded by the trial court is justified or not?” 9. As we have stated earlier that the order of conviction is based on the testimonies of PWs1, 2, 3 and 6, one of them PW6 the informant, happens to be the injured eyewitness. On perusal of the testimonies of those witnesses, we do not find anything to discard their testimonies and thus the trial court seems to be absolutely justified in recording the order of conviction, so far as this appellant is concerned. 10. On perusal of the testimonies of those witnesses, we do not find anything to discard their testimonies and thus the trial court seems to be absolutely justified in recording the order of conviction, so far as this appellant is concerned. 10. So far as sentence is concerned, admittedly, maximum punishment, which has been prescribed under the Juvenile Justice (Care and Protection of Children) Act, is 3 years, whereas this appellant, who may be presently aged about more than 25 years, has already served sentence for more than 8 years and, thereby, following the decision rendered in the case of Lakhan Lal” supra) the sentence imposed by the trial court is hereby set aside and the appellant is directed to be released forthwith if not wanted in any other case. 11. Thus, this appeal stands disposed of in terms of the order as aforesaid.