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2016 DIGILAW 555 (JHR)

Churka Murmu v. State of Jharkhand

2016-04-04

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : By Court : This Cr. Appeal has been directed against the judgment of conviction and order of sentence dated 12.08.2004 passed by the Addl. Sessions Judge-I, Pakur in connection with S.C.No.24/2002, corresponding to G.R.No.301/2001 (T.R.No.72/2002), arising out of Hiranpur P.S. Case No. 38/2001 whereby appellants have been held guilty for the offence punishable under Sections 302/149 of the Indian Penal Code and sentenced to undergo R.I. for life and to pay fine of Rs.5,000/-each and in default of making payment of fine further R.I. for one year. Appellant-Fateh Besra has been further held guilty for the offence punishable under Section 148 of the Indian Penal Code and sentenced to undergo R.I. for one year whereas remaining three appellants Marang Murmu, Churka Murmu, Raghu Besra have been held guilty for the offence under Section 147 of the Indian Penal Code and sentenced to undergo R.I. for six months. The sentences so passed were directed to run concurrently. 2. The facts emerging from the fardbayan of Pandu Hembrom recorded on 14.07.2001 at 14 hours at village Ramakura near the house of Chhotu Murmu is that on 14.07.2001 Pradhan Hembrom (son of the informant) had left home at about 7 a.m. for grazing cattle. When he reached near a culvert situated on the road of village Pipaljori, the appellants and their associates armed with lathi, bows and arrow, Dab etc. restrained Pradhan Hemrbom and subjected him to assault. The informant raised alarm which attracted villagers and the witnesses but they did not dare to intervene. The informant also confined himself in the house. The appellants and their associates after causing assault to Pradhan Hembrom, challenged the informant to come out and forcibly knocked the door from outside. In the meantime, wife of the deceased ran to the place and took Pradhan Hembrom to village Ramakura with the help of Chhotu Murmu but till then Pradhan Hembrom had breathed his last. On the basis of fardbayan, Hiranpur P.S. Case No. 38/2001 dated 14.07.2001, under Sections 147/148/149/302 of the Indian Penal Code against the appellants and their associates was registered. The police after due investigation submitted charge-sheet and accordingly cognizance was taken and the case of the appellants was committed to the court of sessions and registered as S.C.No.24/2002. On the basis of fardbayan, Hiranpur P.S. Case No. 38/2001 dated 14.07.2001, under Sections 147/148/149/302 of the Indian Penal Code against the appellants and their associates was registered. The police after due investigation submitted charge-sheet and accordingly cognizance was taken and the case of the appellants was committed to the court of sessions and registered as S.C.No.24/2002. Charges under Sections 147/148/149/302 of the Indian Penal Code were framed against the appellants to which they pleaded not guilty and claimed to be tried. The prosecution in order to substantiate the charges examined altogether 10 witnesses whereas no defence witness has been examined. The learned Trial Judge placing reliance on the evidence and documents available on record held the appellants guilty and inflicted sentence as indicated above. 3. The appellants have assailed the impugned judgment on the ground that informant is not an eye-witness. He has admitted that he had witnessed the occurrence from a distance of about 100-150 yards. There is admission in the fardbayan itself that seeing the assault he confined himself inside the house. Had it been so he had no occasion to see the entire episode of assault. Churamani Marandi (P.W.10) happens to be wife of the deceased and according to her own statement, she had reached to the place when the occurrence of assault was over. She has stated that occurrence was seen by her while she was sitting in the courtyard. In fact she had also not witnessed the occurrence. P.W.6-Rajan Hembrom, who is the brother of the deceased, has exaggerated the occurrence in his deposition in Court. He has described that accused persons were holding sickle, bows and arrow, dab, lathi etc. The informant did not say that any of the accused was armed with sickle. As a matter of fact, no witness other than P.W.6 have stated that the deceased was assaulted by means of stone so this is again exaggeration in the statement of P.W.6. Vijay Hembrom (P.W.3) has stated that appellants and their associates had been chasing the deceased for causing assault but it is not appearing in his statement recorded under Section 161 of the Cr.P.C. This contradiction was taken and referred to I.O. in para 16 and I.O. has confirmed that such statement was not given by Vijay Hembrom (P.W.3). Vijay Hembrom (P.W.3) has stated that appellants and their associates had been chasing the deceased for causing assault but it is not appearing in his statement recorded under Section 161 of the Cr.P.C. This contradiction was taken and referred to I.O. in para 16 and I.O. has confirmed that such statement was not given by Vijay Hembrom (P.W.3). Besides the above, it is submitted that only family members have supported the prosecution case and they all are highly interested witnesses. The time of occurrence according to prosecution case is about 7 a.m. in the morning and the place of occurrence is the village road. Presence of villagers at that point of time is always expected but no villager has come forward to support the evidence brought on record by family members of the deceased. Non-examination of independent witness is fatal to the prosecution. Chhotu Murmu (P.W.1), Shivdhan Marandi (P.W.2), Shri Babu Ram Hembrom (P.W.4) and Shri Lal Kisku (P.W.5) have turned hostile and they have not supported the prosecution case. It is disclosed by the informant that P.W.10 with the help of Chhotu Murmu took the deceased to village Ramakura but this contention of P.W.10 does not find support from evidence of P.W.1. Weapon held by the appellants, manner of occurrence described by the informant and other witnesses are also contradictory to each other. The learned Trial Judge has wrongly appreciated the evidence and held the appellants guilty. All the eye-witnesses have not identified all the appellants in Court. Therefore, identification of appellants in Court is also not consistent in the statement of so-called eye-witnesses, who are none else but the family members and highly interested witnesses. The land dispute between the appellants and the family members of the deceased was prevailing from before is admitted and to support this fact certain documents have been brought on record and those documents have been marked Ext. A to A/6. 4. Learned A.P.P. has opposed the argument and submitted that only because eye-witnesses are related to the deceased, their testimony if reliable, consistent and convincing that cannot be discarded. The manner of assault, weapon used, part of the body to which injuries were inflicted as described by the eye-witnesses stood corroborated by postmortem report Ext. 5 and the evidence of Doctor (P.W.8). The Investigating Officer (P.W.7) has also supported the prosecution case and proved fardbayan (ext.3), inquest report (ext.2), formal F.I.R. (Ext.4). The manner of assault, weapon used, part of the body to which injuries were inflicted as described by the eye-witnesses stood corroborated by postmortem report Ext. 5 and the evidence of Doctor (P.W.8). The Investigating Officer (P.W.7) has also supported the prosecution case and proved fardbayan (ext.3), inquest report (ext.2), formal F.I.R. (Ext.4). Since appellants were members of unlawful assembly and the object of that unlawful assembly was to commit murder which they did by causing murder of Pradhan Hembrom, each and every member of that unlawful assembly is liable to be punished under Section 302 with the aid of Section 149 of the Indian Penal Code. The individual role played by member of that unlawful assembly is not very much important. The learned Trial Judge has rightly held the appellants guilty and this appeal is devoid of merit. 5. Heard rival submissions, perused the record and the evidence available. The prosecution case is based on the evidence of four eye witnesses and they are Vijay Hembrom (P.W.3), Rajan Hembrom-P.W.6 (brother of the deceased), Pandu Hembrom-P.W.9 (father of the deceased), Churamani Marandi-P.W.10 (wife of the deceased). Besides these four eyewitnesses, learned Trial Judge has also placed reliance on the evidence of Virendra Paswan-P.W.7 (I.O.), Dr. Suresh Chandra Sharma (P.W.8), who conducted postmortem examination on the dead body of Pradhan Hembrom. We do agree that only because eye-witnesses are related to the deceased, their testimony cannot be discarded if it is reliable, convincing, consistent and inspiring confidence. We have carefully scrutinized the evidence of aforesaid four eye-witnesses. To some extent we do agree with the submission advanced by the learned Counsel for the defence that P.W.10 had reached to the place of occurrence after the assault was over but the facts remain that Pradhan Hembrom after being assaulted was lying at the spot and he was taken by this witness with the help of P.W.1 and other villagers to village Ramakura (maternal uncle's house of deceased). P.W.10 has named the appellants in her deposition in Court and she has identified them. She has also described the weapon held by them. P.W.9 happens to be father of deceased and he is the informant. The occurrence took place in the morning at about 7 a.m. Fardbayan was recorded in the afternoon at about 1:45 p.m. The police also arrived at the village within few hours of the occurrence. She has also described the weapon held by them. P.W.9 happens to be father of deceased and he is the informant. The occurrence took place in the morning at about 7 a.m. Fardbayan was recorded in the afternoon at about 1:45 p.m. The police also arrived at the village within few hours of the occurrence. We do not find that the informant had delayed in giving fardbayan to the Police. He has given vivid description of the occurrence including the role played by each and every member of that unlawful assembly including role played by the appellants. There is no doubt that unlawful assembly was formed by the appellants and their associates and they were armed with deadly weapon. As soon as Pradhan Hembrom reached to the place, he was targeted and subjected to assault and due to the injury inflicted, he died, therefore, common object of that unlawful assembly was to commit murder is also apparent. The informant has fully supported the prosecution case as made out by him in his fardbayan. 6. Vijay Hembrom (P.W.3) and Rajan Hembrom (P.W.6) have corroborated the evidence of P.W.9 and the statement made in the fardbayan and both of them have repeated similar facts in their deposition in Court. The contradictions appearing in the statement of Vijay Hembrom (P.W.3) and Rajan Hembrom (P.W.6) as pointed out by the Counsel for the appellants do not appear to be material. If P.W. 6 has not stated in his statement recorded under Section 161 Cr.P.C. that he had gone to graze cattle that cannot be considered material contradiction rather it would be an omission and this omission has no relevance to the occurrence described by him as an eye-witness. Likewise omission to say that the appellants were chasing the deceased is also not fatal to the prosecution because of the fact that appellants and their associates were about 10-12 in number, they have surrounded the deceased to cause assault and in such circumstances it is always expected that the deceased would try to escape to avoid assault and the accused persons in order to inflict injuries would certainly chase him. We do not agree to accept this omission appearing in the statement of P.W.3 as fatal. Furthermore the injuries sustained by the deceased stood explained by all the eye-witness and those injuries find support from evidence of Dr. Suresh Chandra Sharma (P.W.8). We do not agree to accept this omission appearing in the statement of P.W.3 as fatal. Furthermore the injuries sustained by the deceased stood explained by all the eye-witness and those injuries find support from evidence of Dr. Suresh Chandra Sharma (P.W.8). The Doctor had found the injuries on parietal bone having underlying fracture. Witnesses have stated, when the deceased fell down, they boarded on his chest and they were jumping. Multiple fracture injuries on ribs had certainly been caused due to aforesaid act of the appellants and other accused. Cut injury was inflicted on leg of the deceased. According to deposition of eyewitness cut injury by means of 'dab' on leg of the deceased was caused and that evidence find support from postmortem report when the Doctor found incised wound on the leg. Therefore, we find that oral evidence of eyewitness finds support from postmortem report. It is not disputed that land dispute between the parties was prevailing from before but it is also a truth that enmity cuts both way. In such cases an aggrieved party always tries to implicate more and more family members of the aggressor party and they also try to exaggerate the occurrence. But in the instant case, we do not find exaggeration in the statement of eye-witness. Altogether eight accused including the appellants were named in the F.I.R., out of them accused Bharat Murmu was found to be juvenile so his case was split up from other accused persons on the date of cognizance i.e. on 11.10.2001 whereas one of the accused namely Chunu Murmu died during investigation. The appellants with two more accused namely Vikram Murmu and Rane Murmu were put on trial. Vikram Murmu and Rane Murmu were not identified by all the witnesses during trial, therefore, they stood acquitted. So far these appellants are concerned all the eye-witnesses have given consistent statement by describing the role played by them. In the circumstances and the evidence available on record, we do not find any merit in this appeal and the same stands dismissed. The bail bond of Marang Murmu and Raghu Besara are hereby cancelled and they are directed to surrender before the Convicting/Successor Court within six weeks from today to serve out the sentence, failing compliance the Convicting/Successor Court shall issue processes to secure their attendance. Appeal Dismissed.