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2015 DIGILAW 815 (JHR)

Sandeep Hembrum v. State of Jharkhand

2015-07-16

PRAMATH PATNAIK, R.R.PRASAD

body2015
ORDER : By Court: This appeal instituted at the instance of the appellants Sandeep Hembrum and Rohit Marandi is directed against the judgment of conviction and order of sentence dated 24.5.2004 passed by the then Additional Sessions Judge-cum-FTC No.V, Deoghar in S.C.Nos.185 and 257 of 2003 whereby and whereunder the court while acquitting co-accused Ansar Khan @ Luthra Mian found these two appellants guilty for committing murder of Ramdeo Mahto in furtherance of their common intention and also for causing evidence of murder disappeared convicted them for the offence punishable under Section 302/34 and also under Section 201/34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life for the offence under Section 302/34 of the Indian Penal Code and further to undergo rigorous imprisonment for seven years for the offence under Section 201/34 of the Indian Penal Code. 2. The case of the prosecution is that the informant, Hari Mahto (P.W.11) was in need of fodder and hence, he requested one Asmat Mian, who was having tractor, to bring it from Suggapahari. On 28.2.2003 at about 3 p.m. the said Asmat Mian came to the informant with his tractor to bring hey for him . On being asked he proceed with tractor. Ramdeo Mahto, son of the informant, by riding Motor Cycle followed him. Asmat Mian came back with hey at about 7 p.m. but his son Ramdeo Mahto (deceased) did not return. On being asked by the informant, Asmat Mian told him that he will be coming after some time but Ramdeo Mahto did not return home and therefore, in the early morning of 1.3.2003 the informant set out in search of his son. During that course, when he came to Dhobbadih, he found crowd being assembled at the place where he found headless dead body of his son. 3. On the same day, i.e. 1.3.2003 Sub-Inspector of Madhupur Police Station Shiv Kumar Pathak, (P.W.14) who came to know that one man has been killed, he came to the place of occurrence at Dhobbadih where at about 11.05 hours he recorded the statement of the informant Hari Mahto (P.W.11) wherein he narrated the same story as has been stated hereinabove. On the same day, i.e. 1.3.2003 Sub-Inspector of Madhupur Police Station Shiv Kumar Pathak, (P.W.14) who came to know that one man has been killed, he came to the place of occurrence at Dhobbadih where at about 11.05 hours he recorded the statement of the informant Hari Mahto (P.W.11) wherein he narrated the same story as has been stated hereinabove. The informant in his Fardbeyan (Ext.7) raised suspicion against Asmat Mian, who was having grudge on account of the fact that the informant instead of taking brick from Asmat Mian had started taking brick from Yakub Mian . 4. On the basis of the said Fardbeyan, an F.I.R was registered against Asmat Mian and others. The said Shiv Kumar Pathak (P.W.14) undertook the investigation. During which he held inquest on the dead body of the deceased and sent the dead body for post mortem examination. Meanwhile, head of the body was recovered from a well at the instance of the appellant Sandeep Hembrum in presence of Reyan Khan (P.W.2). That was also sent for post mortem examination. Upon receiving the dead body, Dr.Rameshwar Mahto (P.W.9) held autopsy on the dead body and found the following injuries. (I) Incised wound in between 6 & 7 cervical vertebra, completely (encircling) (II) Whole of neck was found cut with cutting of all important blood vessels, nerves, muscles trachea, oesophagus and bone etc. (III) Multiple abrasion over both wrist and ankle indicating the encircling by means of rope. On dissection – There was fracture of 7th and 9th ribs of left side in its middle. Lungs were found lacerated by the broken ribs. On dissection of abdomen- abdominal cavity was found containing blood. Liver was found ruptured. 5. Doctor issued post mortem examination report (Ext.3) with an opinion that death was caused due to shock and haemorrhage as a result of above injuries caused by sharp cutting weapon. 6. Likewise, Dr.Chitrangant Prasad Sinha (P.W.12) held autopsy on the head and found that the head was amputated at the level of cervical vertebra 2-3. The margin of wound was clean and regular indicating therein that the head was removed by sharp cutting weapon. The doctor did prove the report as Ext.5. 7. Meanwhile, Investigating Officer seized the Motor Cycle belonging to the deceased in presence of Chhotelal Hansda, P.W.3 and Hemlal Kisku, P.W.8, who happens tobe none other than brother-in-law of the appellant, Sandeep Hembrum. The doctor did prove the report as Ext.5. 7. Meanwhile, Investigating Officer seized the Motor Cycle belonging to the deceased in presence of Chhotelal Hansda, P.W.3 and Hemlal Kisku, P.W.8, who happens tobe none other than brother-in-law of the appellant, Sandeep Hembrum. During investigation, the appellant Sandeep Hembrum made judicial confession recorded by Sri Anil Kumar, the Magistrate (P.W.13) which has been proved as Ext.6. 8. On completion of investigation, charge sheet was submitted first against the appellant Sandeep Hembrum and subsequently against the appellant Rohit Marandi as well as one Ansar Khan @ Luthra Mian, upon which cognizance of the offence was taken. However, the case of the accused persons were committed by two different orders and thereby two sessions case were registered but were tried together. During trial the prosecution in order to prove its case examined as many as 15 witnesses. Of them, Budhram Hembrum, P.W.1 did testify that on 28.2.2002 Ramdeo Mahto had come on a Motor Cycle to take hey which he got it loaded over the tractor and then left the place but the other day he could know that Ramdeo Mahto has been murdered and that Motor Cycle belonging to the deceased was recovered from the house of Samdeep Hembrum which was seized under seizure list to which he was one of the signature. P.W.2, Reyan Khan has testified that at the instance of the appellant Sandeep Hembrum, head was recovered from a well. P.W.3, Chhotelal Hansda has testified that the appellant, Sandeep Hembrum had come on a Motor Cycle to which he was unable to start. P.W.4, Munna Soren and P.W.5, Jaya Hansda have been tendered for cross-examination. P.W.6, Babulal Tuddu has testified that the appellant, Sandeep Hembrum has come to his house on a Motor Cycle and kept the Motor Cycle and went away by saying that he will come within half an hour but he did not return and therefore, he got the Motor Cycle parked at the house of the accused Sandeep Hanbrum. P.W.7, Nunulal Murmu has testified that at about 7-8 p.m. on 28.2.2003 the appellants, Sandeep Hembrum and Rohit Marandi came along with one person who was wearing 'Lungi' and asked for liquor. He gave it to them and then they went away but the other day he could know that the person who had wearing Lungi had been murdered. P.W.7, Nunulal Murmu has testified that at about 7-8 p.m. on 28.2.2003 the appellants, Sandeep Hembrum and Rohit Marandi came along with one person who was wearing 'Lungi' and asked for liquor. He gave it to them and then they went away but the other day he could know that the person who had wearing Lungi had been murdered. P.W.8, Hemlal Kisku is the witness of the seizure of the Motor Cycle from the house of Sandeep Hembrum whereas P.W.10, Riyasat Khan is the witness to the seizure of the headless body. P.W.11, Hari Mahto, the informant has testified in the same manner as he has made statement in his Fardbeyan. P.W.15, Motilal Marandi did testify that in the evening of 28.2.2003 both the appellants had come and asked for sickle which he provided to them as they had taken it on the pretext that they had to dress up a chicken. The other day he could know that headless dead body was recovered from Suggapahari field. 9. After closure of the prosecution case when incriminating evidences appearing against the appellants were put to the accused persons under Section 313 of the Code of Criminal Procedure, they denied. 10. Thereafter Sandeep Hembrum himself examined as D.W.1 wherein he denied that he had ever asked for sickle nor he had taken the Motor Cycle of the deceased nor at his instance head was recovered and that whatever statement was made by him that he made under pressure of the police. 11. Thereupon the trial court taking into account the circumstances appearing against the appellants did find both the appellants guilty for committing murder of the deceased and accordingly, recorded the order of conviction and sentence which is under challenge. 12. Mrs. Chaitali C. Sinha, learned counsel appointed as Amicus Curiae submits that none of the circumstances which has been used against the appellants has been fully established by the prosecution and thereby those circumstances appearing against the appellants such as Motor Cycle being found in possession of the appellants, head was recovered from the well at the instance of the appellant Sandeep Hembrum and that Sandeep Hembrum along with others seen lastly in the company of the deceased can never be taken into account for finding the guilt of the appellant. 13. 13. Further it was submitted that so far the appellant Rohit Marandi is concerned, only circumstance which has come against him that he was lastly seen with the company of the deceased but that alone is not sufficient to hold the appellant guilty. 14. Lastly, it was submitted that from the confessional statement made by the appellant Sandeep Hembrum it would appear that whatever acts were done it were done by other accused persons and not by Sandeep Hembrum and that act was done at spur of the moment and thereby the appellants cannot be held guilty for the offence punishable under Section 302/34 of the Indian Penal Code. 15. As against this, Mr.Pankaj Kumar learned counsel appearing for the State submits that the circumstances which are appearing against the appellants are so clinching that one can easily come to conclusion, that it were only the appellants and none else, who committed murder of the deceased and thereby the trial court was absolutely justified in recording the order of conviction and sentence which never warrants to be interfered with. 16. Having heard learned counsel appearing for the appellants and on perusal of the record, we do find that the case of the prosecution as has been testified by the informant (P.W.11) is that on 28.2.2003 at about 3 p.m. Ramdeo Mahto (deceased) had left home on a Motor Cycle for bringing hay on a tractor belonging to Asmat Mian. He, as per the evidence of P.W.1, Budhram Hembrum came to him and got the hay loaded on a tractor and then proceeded on his Motor Cycle along with the tractor. However, he did not return home on that night. In the next morning, his headless dead body was found in a field which was identified by the informant, Hari Mahto, P.W.11 as well as Riyasat Khan, P.W.10. Subsequently, head was also recovered at the instance of the appellant, Sandeep Hembrum which is evident from the evidence of Reyan Khan, P.W.2 and also the Investigating Officer, Shiv Kumar Pathak, P.W.14. 17. Further it gets transpired from the evidence of Chhotelal Hansda (P.W.3) that the appellant Sandeep Hembrum was found handling a Motor Cycle belonging to the deceased which was recovered in presence of P.W.1, Budhram Hembrum and P.W.8, Hamlal Kisku. 17. Further it gets transpired from the evidence of Chhotelal Hansda (P.W.3) that the appellant Sandeep Hembrum was found handling a Motor Cycle belonging to the deceased which was recovered in presence of P.W.1, Budhram Hembrum and P.W.8, Hamlal Kisku. Further we do find from the evidence of Nunulal Murmu (P.W.7) that in the evening in and around 7 p.m. on the day of occurrence both the appellants along with a person wearing Lungi had come to the place of Nunulal Murmu, P.W.7 and asked for liquor which was provided and then they went away. On the next morning he (P.W.7) could know that headless dead body has been found. According to him, the dead body was of the person who had come to his place wearing Lungi. Before that both the appellants as per the evidence of Motilal Marandi (P.W.15) had come to the place of one Motilal Marandi, P.W.15 and had asked for sickle on the pretext that they had to dress up a chicken. He gave sickle to them and when he came out of the house, he found three persons outside and one of them was wearing Lungi. In the morning he did find dead body of Ramdeo Mahto being recovered from the said field. According to the informant, when the deceased had left home, he had been wearing underpant, lungi, etc. 18. Under the circumstances, it gets proved that the person who came along with both the appellants to the house of Nunulal Murmu, P.W.7 and also to the house of Motilal Maraidi (P.W.15), was none other than Ramdeo Mahto (deceased). 19. According to the informant, when the deceased had left home, he had been wearing underpant, lungi, etc. 18. Under the circumstances, it gets proved that the person who came along with both the appellants to the house of Nunulal Murmu, P.W.7 and also to the house of Motilal Maraidi (P.W.15), was none other than Ramdeo Mahto (deceased). 19. Thus, the circumstances appearing against the appellants which have been proved by the prosecution are that (I) both the appellants were in the company with the deceased in the evening on 28.2.2003 (ii) in the next morning, headless dead body was found (iii) head was recovered from a well at the instance of the appellant Sandeep Hembrum (iv) Motor Cycle belonging to the deceased was recovered from the possession of the appellant, Sandeep Hembrum who had even tried to keep the Motor Cycle in the house of Budhlal Tuddu, P.W.6 presumably to get rid of that Motorcycle belonging to the deceased indicating towards the guilty mind of the appellant Sandeep Hembrum (v) Both the appellants were lastly seen in company of the deceased which is so proximate with the death of the deceased and no one other than the appellants can be blamed for the murder of the deceased. 20. All these circumstances unerringly indicate towards the guilt of the appellants and thereby the trial court has rightly recorded the judgment of conviction and order of sentence which is hereby affirmed. 21. In the result, this appeal stands dismissed.