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2017 DIGILAW 1349 (JHR)

Sheo Lal Murmu v. State of Jharkhand

2017-08-03

ANANDA SEN, H.C.MISHRA

body2017
JUDGMENT : Heard learned amicus curiae for the appellants and learned counsel for the State. 2. Appellants are aggrieved by the Judgment of conviction dated 26.8.1992 and Order of sentence dated 27.8.1992, passed by learned Additional Sessions Judge, Pakur (in the then District of Sahikganj), in Sessions Case No. 160 of 1985, whereby the aforesaid appellants along with other three accused persons, who are since dead, have been found guilty and convicted for the offences under Sections 302/34, 148 and 323 of the Indian Penal Code. Upon hearing on the point of sentence, the appellants were sentenced to undergo R.1. for life for the offence under Sections 302/34 of the Indian Penal Code, R.1. for 3 years for the offence under Section 148 of the Indian Penal Code and R.1. for 1 year for the offence under Section 323 of the Indian Penal Code, and all the sentences were directed to run concurrently. 3. The FIR was lodged on 18.1.1984, by one Laxmi Marandi, who had also brought the dead body of the deceased Mangal Marandi in the Police Station, in which, it is stated that the deceased Mangal Marandi had the land dispute with the accused persons, named in the FIR, in all seven persons. On 17.1.1984, there was a Shradh feast at the house of Laxmi Marandi, in which, the deceased and other persons had taken part. When the feast was over at about 10.00 PM in the night, the deceased, Mangal Marandi, proceeded towards his house and the informant and some other persons, accompanied the deceased up to his house. As they reached near the house of one Lakhi Ram Hansda, all the seven named accused persons, including these appellants, who were hiding beneath a bullock-cart, came out and they started assaulting the deceased. It is alleged in the FIR that the accused Barhu Baksi (since dead) assaulted the deceased by axe on his head, accused Shyam Murmu (since dead) assaulted the deceased by iron rod, Pagan Kisku (appellant before us) assaulted the deceased by knife and the other accused persons, including the appellant Sheo Lal Murmu, assaulted the deceased by lathi. When the informant and the other witnesses tried to save the deceased, they were also assaulted and injured by the accused persons. The deceased died at the spot. When the informant and the other witnesses tried to save the deceased, they were also assaulted and injured by the accused persons. The deceased died at the spot. Alleging that the deceased had been killed by the accused persons due to land dispute, the FIR was lodged by the informant Laxmi Marandi, on the basis of which Litipara P.S. Case No. 1 of 1984 was instituted, for the offences under Sections 147, 148, 149 and 302 of the Indian Penal Code, and investigation was taken up. After investigation, the police submitted the charge-sheet against eight accused persons, including these appellants. 4. After commitment the case to the Court of Session, the charge was framed against all the eight accused persons for the offences under Sections 302/34, 148 and 323 of the Indian Penal Code, and upon the accused persons pleading not guilty and claiming to be tried, they were put to trial. 5. It may be stated that out of the eight accused persons, who were put to trial, Borha Baskey, Bhora Baskey and Shyam Murmu had died during trial, and accordingly, the trial proceed only against the five named accused, namely, Lampa Baskey, Pagan Kisku, Moora Kisku, Sheo Lal Murmu and Jitrai Kisku. During pendency of this appeal, Lampa Baskey, Jitrai Kisku and Moara Baskey also died, and as such, the appeal abated against them and their names were deleted from the array of the appellants. Hence, there are only two appellants, Sheo Lal Murmu and Pagan Kisku, before us. 6. So far as these two appellants are concerned, we have gone through the record. The prosecution has examined in all 10 witnesses, out of whom, PW-1 Laxmi Marandi, the informant of the case, PW-2, Jyotin Marandi, PW-4 Boyla Marandi, PW-5 Kaviraj Marandi, PW-6 Surodhini Tudu and PW-7 Dangi Marandi, have all supported the prosecution case as eyewitnesses to the occurrence. PW-1 Laxmi Marandi, PW-2, Jyotin Marandi and PW-4 Boyla Marandi, were accompanying the deceased from the house of the informant Laxmi Marandi, whereas PW-5 Kaviraj Marandi, PW-6 Surodhini Tudu and PW-7 Dangi Marandi, came to the place of occurrence upon hearing the noise and they also saw the occurrence. All these witnesses have' named the accused persons and they stated that all the accused persons had assaulted the deceased Mangal Marandi, due to which, he died at the spot. All these witnesses have' named the accused persons and they stated that all the accused persons had assaulted the deceased Mangal Marandi, due to which, he died at the spot. PW-1 Laxmi Marandi and PW-2 Jyotin Marandi, have specifically stated that the accused Pagan Baski was armed with knife and he had also assaulted the deceased by knife, and there is general allegation against Sheo Lal Murmu to have assaulted the deceased by lathi. The witnesses have also stated that when they tried to save the deceased, they were also assaulted and injured, and it has come in the evidence that Sheo Lal Murmu had assaulted and injured PW-5 Kaviraj Marandi and PW-7 Dangi Marandi by lathi, whereas, the accused Pagan Baski had assaulted and injured PW-6 Surodhini Tudu by knife. 7. PW-8 is Dr. H. Hansda, who had conducted the post mortem examination on the dead body of the deceased on 19.1.1984 and he had found the following two injuries on the dead body of the deceased:- 1. One lacerated cut wound about 2" x 1 " x 1" deep on forehead above the right eye. The forehead was smashed and the skull bone was fractured, its pieces had entered the brain rupturing the membrane. Due to compound fracture of the forehead and frontal portion of the skull, the shape of fore head was deshaped and depressed. 2. One abrasion 1" x 1/2" below left eye. He has stated that the cause of death was blows by hard blunt object on the forehead on the frontal portion of the skull leading to massive intracranial haemorrhage and shock. This witness has identified the post mortem report to be in his pen and signature, which was marked Exhibit-2. 8. PW-9 is Dr. N.C. Mishra, who had examined the other injured persons. On Kaviraj Marandi and Dangi Marandi, the injuries caused by hard and blunt substance were found (the author of which is alleged to be the appellant Sheo Lal Marandi) and on Surodhini Tudu, one lacerated wound was found over the left side of the forehead, caused by hard and blunt substance, may be by blunt side of knife (the author of which is the appellant Pagan Baskey). The injury reports have been proved as Exhibits-3 series. 9. The injury reports have been proved as Exhibits-3 series. 9. The O.I. has not been examined in the case and one injury report of the informant, the formal FIR and the inquest report were proved by a formal witness PW-10 Subodh Kumar Banerjee, which were marked as Exhibits-3/5, 4 and 5 respectively. This witness has stated that he had no knowledge about the occurrence and he had no knowledge about the whereabouts of the authors of these/documents, or whether they are alive or dead. 10. On the basis of the aforesaid evidence on record, the appellants have been convicted and sentenced for the offences as aforesaid. 11. Learned amicus curiae, arguing for the appellants, has submitted that the impugned Judgment cannot be sustained in the eyes of law, in as much as, the occurrence had taken place in the late night after 10.00 PM and there was no source of light at the place of occurrence. It has been submitted that though the prosecution witnesses have supported the case of assault upon the deceased, alleging that the co-accused. Barhu Baskey had assaulted the deceased by axe on his head, Shyam Marandi had assaulted him by iron rod and the appellant Pagan Kisku had assaulted him by knife, and there is allegation against all the other accused to have assaulted the deceased by lathi, but the fact remains that only two injuries were found on the deceased, one on head, which was allegedly caused by the co-accused Barhu Baskey, who is since dead, and the other is only an abrasion. No knife injury, or other injury caused by hard and blunt object was found on the dead body of the deceased, which makes the presence of these appellants at the place of occurrence very doubtful. Though, some injuries are said to be caused on the other witnesses also by the accused appellants, but the I.O. has not been examined in the case, due to which the defence was vitally prejudiced by not taking the necessary facts from the I.O., and as such, the prosecution has not been able to bring home charges against the appellants beyond all reasonable doubts. It is submitted that in any event, the appellants were entitled at least to the benefits of doubt. 12. It is submitted that in any event, the appellants were entitled at least to the benefits of doubt. 12. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that all the eyewitnesses have fully supported the prosecution case and all of them were also injured in the occurrence, and as such, their presence at the place of occurrence cannot be doubted. The witnesses have specifically stated that all the named accused persons had assaulted the deceased, causing his death at the spot, and the allegation of assault upon the deceased is also against both these appellants. Learned counsel has further submitted that the witnesses were also injured in the occurrence and the ocular evidence of these witnesses are fully supported by the medical evidence of PW-8 Dr. H. Hansda, and the post mortem report proved by him as Exhibit-2, and the medical evidence of PW-9 Dr. N.C. Mishra and the injury proved by him as Exhibit-3 series. The injuries allegedly caused by these appellants on PW-5 Kaviraj Marandi, PW-6 Surodhini Tudu and PW-7 Dhangi Marandi, were also proved by PW-9 Dr. N.C. Mishra. Learned counsel, accordingly, submitted that the prosecution has been able to prove the charges against the appellants also beyond all reasonable doubts. 13. Having heard learned counsels for both the sides and upon going through the record, we find that though there is specific evidence of assault against these appellants in the evidence of PW-1-Laxmi Marandi and PW-2-Jyotin Marandi stating that the accused Pagan Baski had assaulted the deceased by knife and Sheo Lal Murmu had assaulted the deceased by lathi, but the fact remains that the evidence of PW-8 Dr. H. Hansda and the post mortem report proved by him, clearly show that no injury, either caused by knife or other injury cased by hard and blunt substance, except the one allegedly caused by the co-accused Barhu Baskey (since dead), was found on the deceased, which could be attributed to the other accused persons. We are of the considered view that since the allegation of assault made by these appellants are not supported by the medical evidence of P.W.8 Dr. H. Hansda and post mortem report proved by him as Exhibit-2, the false implication of these appellants cannot be ruled out, particularly in view of the admitted enmity between the prosecution side and the defence side. H. Hansda and post mortem report proved by him as Exhibit-2, the false implication of these appellants cannot be ruled out, particularly in view of the admitted enmity between the prosecution side and the defence side. We are of the considered view that the prosecution has not been able to bring home the charges against these appellants beyond all reasonable doubts, and even though the witnesses have supported the prosecution case, these appellants were entitled at least to the benefits of doubt. Accordingly, the impugned Judgment of conviction and Order of sentence passed against these appellants cannot be sustained in the eyes of law. 14. For the foregoing reasons, the impugned Judgment of conviction dated 26.8.1992 and Order of sentence dated 27.8.1992, passed by learned Additional Sessions Judge, Pakur, in Sessions Case No. 160 of 1985, so far as the appellants Sheo Lal Murmu and Pagan Kisku are concerned, are hereby, set aside. Both these appellants are given the benefits of doubt and they are acquitted of the charges leveled against them. Both these Appellants are on bail, and they are discharged from the liabilities of their respective bail bonds. 15. This appeal is accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.