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2016 DIGILAW 258 (JHR)

Babesh Murmu v. State of Jharkhand

2016-02-05

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : This Criminal Appeal has been preferred by appellant from jail against the judgment of conviction and order of sentence dated 19th September, 2005, passed by 1st Additional Sessions Judge, Pakur in connection with Sessions Case no. 154 of 2004 corresponding to G.R. Case no. 341 of 2004 arising out of Pakur (M) P.S. Case no. 160 of 2004, whereby the appellant has been held guilty for the offence punishable under sections 302 and 325 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 5,000/-and in default of payment of fine further imprisonment for one year u/s 302 Indian Penal Code and further sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs. 1,000/- and in default of payment of fine further imprisonment for three months u/s 325 Indian Penal Code. 2. The case of the prosecution as it appear from the fard-beyan of Chhitta Marandi recorded on 28.8.2004 at 6:00 hrs. at village Dharsundi within P.S. Pakur (Muffasil) is that one day prior to the date of recording of fard-beyan i.e. on Friday appellant Babesh Murmu caused assault to Gurgu Murmu (husband of informant) by means of iron rod causing injury to Gurgu Murmu. Further blow of iron rod was inflicted on his leg. When the informant came to rescue her husband she was also assaulted by means of iron rod and she sustained fracture injury on her hand. The reason behind the occurrence has been assigned that appellant Babesh Murmu and deceased Gurgu Murmu are own brothers and Gurgu Murmu (deceased) had been alleging that the appellant had eaten a chicken belonging to him. On the basis of fard-beyan Pakur (Muffasil) P.S. Case No. 160 of 2004 under sections 302,307 Indian Penal Code was registered. The Police after due investigation submitted charge sheet and accordingly cognizance of the offence was taken and the case committed to the Court of Sessions and registered as Sessions Case no. 154 of 2004. 3. The appellant stood charged for the offence punishable under section 302 and 307 Indian Penal Code. Contents of the charges were read over and explained to the appellant to which he pleaded not guilty and claimed to be tried. 4. 154 of 2004. 3. The appellant stood charged for the offence punishable under section 302 and 307 Indian Penal Code. Contents of the charges were read over and explained to the appellant to which he pleaded not guilty and claimed to be tried. 4. To substantiate the charges the prosecution has examined altogether six witnesses and proved documents like fard-beyan, injury report, post-mortem report, inquest report, seizure list etc. The learned Additional Sessions Judge at the conclusion of trial placing reliance on the evidence and documents available, held the appellant guilty for the offence punishable under section 302 and 325 IPC and sentenced him as indicated above. 5. Mr. Hardeo Prasad Singh, learned advocate has been appointed as Amicus Curiae to assist the Court. 6. The appellant has assailed the impugned judgment mainly on the ground that prosecution case is based on solitary eye witness who is none else, but, the wife of deceased. Her statement is not wholly reliable. There are inconsistency in her statement and contradictions are also appearing. The statement made in the fard-beyan suggests that the dispute regarding eating of chicken had arisen on the date of occurrence itself, but, in her cross-examination she says that on the date of incident no quarrel between two brothers had taken place. The incident of eating chicken was prior to the date of occurrence. In her fardbeyan she says that the appellant brought iron rod and hurled blow on the person of deceased but, in her statement in Court she says that it was wife of appellant who brought iron rod and handed over it to her husband Babesh (appellant). This contradiction has been referred to the investigating officer PW-6 and he has fairly conceded that no such statement was given by PW-1 before him. The informant had named two persons Porogan Baski and Manjhi Murmu in whose presence her statement was recorded in her courtyard, but, those two persons have not come forward to support the version of the informant. The investigation done by PW-6 appears perfunctory. It is disclosed that iron rod used for commission of offence was seized but, it was not sent for its chemical examination to Forensic Science Laboratory. Likewise, the Investigating Officer neither prepared sketch map of the place of occurrence nor collected blood fallen on the ground. Though, the informant has clearly stated that blood had fallen on the ground. It is disclosed that iron rod used for commission of offence was seized but, it was not sent for its chemical examination to Forensic Science Laboratory. Likewise, the Investigating Officer neither prepared sketch map of the place of occurrence nor collected blood fallen on the ground. Though, the informant has clearly stated that blood had fallen on the ground. The learned Additional Sessions Judge has committed gross error by placing reliance on the solitary testimony of PW-1 for holding the appellant guilty for the offence of murder. 7. The learned A.P.P. opposed the arguments and submitted that the occurrence took place within four wall of the house of deceased and, wife of deceased who is also injured is quite natural witness and her testimony cannot be discarded only on the ground that she is the wife of deceased and highly interested witness. It is also argued that appellant and deceased are none else but, own brothers and they are tribal. It is experienced that on petty cause, offence like murder is being committed due to ignorance and poverty but, then the law will take its own course and the offender should not be set free. The evidence of PW-1 is wholly reliable. She had sustained injuries in the incident and the injury caused to her finds support from evidence of PW-2. The ocular version of the informant further finds support from the evidence of Dr. Bindu Bhushan PW-3 who had conducted post-mortem examination on the dead body of Gurgu Murmu. The I.O. has proved fard-beyan, inquest report, seizure list and described the investigation done by him. There is no merit in this appeal and the same is liable to be dismissed. 8. We have examined the case record, perused the evidence and the documents available and also gone through the impugned judgment. No doubt the prosecution case is mainly based on the evidence of PW-1 Chhitta Marandi (informant). She has stated that on Friday at about 2 p.m. some altercation took place between two brothers Babesh (appellant) and Gurgu (deceased) on a petty cause of eating chicken. Thereafter, Babesh Murmu brought iron rod from his house and caused assault to his brother Gurgu Murmu on his head. He has further inflicted blows by means of iron rod on the leg of deceased. Thereafter, Babesh Murmu brought iron rod from his house and caused assault to his brother Gurgu Murmu on his head. He has further inflicted blows by means of iron rod on the leg of deceased. When the informant intervened she was also subjected to assault by the appellant and she sustained fracture injury on her hand. The contention made by informant find support from her deposition in Court. The ocular version of the informant further finds support from the evidences of PW-2 and PW-3 who have proved injury report Ext.1 and post-mortem report Ext.2. The learned A.P.P. has rightly submitted that in an offence which is committed within four wall, availability of independent witness is always remote. We do agree, in an offence committed within house premises, inmates and relatives present in the house are most reliable witnesses. In the case at hand, wife of deceased is PW-1 and she has narrated the incident what she had witnessed and she is also victim of the incident. We do not find that presence of any other witness at the time of occurrence has been brought on record. The contradiction which has been highlighted by counsel for the appellant does not appear to be fatal. It will make no difference whether the iron rod used for commission of crime was either brought by appellant himself or it was handed over to him by his wife. In a case in which testimony of eye witness is accepted to be reliable and convincing, minor latches committed by the investigating officer in course of investigation is to be ignored. Non seizure of blood stain from the place of occurrence or non preparation of sketch map would not make the prosecution case unbelievable. The I.O. has proved the fard-beyan, inquest report and he has also supported this fact that the appellant admitted his guilt and produced the iron rod used for committing the offence. We find the prosecution evidence fully intact and the learned counsel for the appellant did not bring any material to disbelieve the testimony of PW-1 or any important latches on the part of prosecution to throw away the entire prosecution case. 9. We do not find any merit in this appeal. We find the prosecution evidence fully intact and the learned counsel for the appellant did not bring any material to disbelieve the testimony of PW-1 or any important latches on the part of prosecution to throw away the entire prosecution case. 9. We do not find any merit in this appeal. In the result, the appeal stands dismissed and judgment of conviction and order of sentence dated 19th September, 2005 passed by 1st Additional Sessions Judge, Pakur in connection with Sessions Case no. 154 of 2004 corresponding to G.R. Case no. 341 of 2004, Pakur (M) P.S. Case no. 160 of 2004 is, hereby upheld. 10. Learned advocate Mr. Hardeo Prasad Singh is entitled to receive required fee from JHALSA for assisting the Court.