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2018 DIGILAW 1978 (JHR)

Jairam Hessa v. State of Jharkhand

2018-08-29

H.C.MISHRA

body2018
JUDGMENT : 1. Heard learned counsel for the appellants and learned counsel for the State. 2. The appellants are aggrieved by the impugned Judgment of conviction dated 08th August, 2008 and Order of sentence dated 13th August, 2008, passed by the learned 1st Additional Sessions Judge, West Singhbhum at Chaibasa, in S.T. No. 191 of 2006, whereby, both the appellants have been found guilty and convicted for the offences under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act. The appellants have, however, been acquitted of the charges under Sections 387/34 of the Indian Penal Code and Section 17 of the C.L.A. Act. Upon hearing on the point of sentence, the appellants were sentenced to undergo R.I. for life with fine of Rs.5000/- each, for the offence under Sections 302/34 of the Indian Penal Code, and they have also been sentenced to undergo R.I. for three years, with fine of Rs.3000/- each, for the offence under Section 27 of the Arms Act. Both the sentences were directed to run concurrently. 3. The prosecution case was instituted on the basis of the fardbeyan of the informant Chandra Mohan Purty, son of Mahti Purty, and the brother of deceased Budh Ram Purty, recorded on 19.03.2006 at about 01:00 P.M., at his house situated in village Kenjra, Tola Jagda, P.S. Tonto, District West Singhbhum. It is stated in the fardbeyan that on 17.03.2006 at about 06:00 P.M., they were celebrating Maghe festival in their house, by pouring haria (local wine made from rice) in the soil. In the meantime, the accused persons, namely, Jairam Hessa and Babu Ram Hembram came there and demanded Rs.10,000/- in levy from his brother Budh Ram Purty. His brother stated that he had no money, whereupon, Jairam Hessa told him to give the money which they had received under Indira Awas Yojna, failing which they would blow up their house. When his brother could not give the money, they took away his brother along with them and his father and mother also followed them. At some distance, Babu Ram Hembram caught hold both the hands of his brother and Jairam Hessa assaulted him by firearm, due to which his brother fell down being injured. Jairam also fired five shots in the air and they fled away towards the forest. At some distance, Babu Ram Hembram caught hold both the hands of his brother and Jairam Hessa assaulted him by firearm, due to which his brother fell down being injured. Jairam also fired five shots in the air and they fled away towards the forest. The informant and family members rushed there and brought the deceased near the house of one Mukru, where he was laid on a cot. The deceased could not be taken to the hospital and he died in about one hour time. It is stated in the fardbeyan that both the accused persons belonged to MCC, and the occurrence had been committed due to the fact that levy could not be given to them. The fardbeyan was recorded in presence of one witness, who is also named Chandra Mohan Purty, son of Gardi Purty. On the basis of the fardbeyan, Tonto P.S. Case No. 11 of 2006 corresponding to G.R. No. 153 of 2006, was instituted against these accused for the offences under Sections 302 and 386/34 of the India Penal Code, Section 17 of the C.L.A. Act and Section 27 of the Arms Act, and investigation was taken up. After investigation, the police submitted the charge-sheet in this case. 4. After commitment of the case to the Court of Session, charge was framed against the accused persons for the offences under Sections 302/34 and 387/34 of the Indian Penal Code, Section 17 of the C.L.A. Act and Section 27/35 of the Arms Act, and upon the accuseds’ pleading not guilty and claiming to be tried, they were put to trial. In course of trial, nine witnesses were examined by the prosecution, including the I.O., and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. No evidence was adduced by the defence. 5. P.W.-7 Chandra Mohan Purty, son of Mahati Purty, is the informant in the case and the brother of the deceased. He has stated that the deceased Budh Ram Purty was his elder brother, who had been killed. The occurrence took place on 17.03.2006. In the evening at about 05:00 P.M., Jairam Hessa and Babu Ram Hembram came and demanded Rs.10,000/- from Budh Ram. Budh Ram told that he could not give the money, whereupon Babu Ram and Jairam took Budh Ram towards the eastern side of their house. The informant and his parents followed them. The occurrence took place on 17.03.2006. In the evening at about 05:00 P.M., Jairam Hessa and Babu Ram Hembram came and demanded Rs.10,000/- from Budh Ram. Budh Ram told that he could not give the money, whereupon Babu Ram and Jairam took Budh Ram towards the eastern side of their house. The informant and his parents followed them. At a distance of about 70 to 75 meters, Babu Ram caught both the hands of Budh Ram and Jairam assaulted Budh Ram in his chest by firearm, due to which he fell down and both the accused persons fled away towards the forest. Thereafter they brought Budh Ram to the house of Mukru, but they could not take him to the hospital as it was night. He has stated that Jairam and Babu Ram were members of M.C.C. This witness has also stated that the police was informed on 18.03.2006 and on 19.03.2006, the police came and recorded his fardbeyan. He has proved his signature on the fardbeyan, which was marked Ext.1/1. He has also stated that Chandra Mohan Purty, son of Gardi Purty, had also put his signature on the fardbeyan, which was earlier marked as Ext.1. He has identified both the accused in the Court. This witness was put to extensive cross-examination. He has stated that blood was shed at the place of occurrence. He had already crossed the house of Mukru, when the deceased was assaulted. Near the place of occurrence, there is forest and it was the time of sunset when the occurrence took place. Mukru was not present there. This witness has also stated that there was no enmity with the accused persons. This witness has stated that the accused persons are residents of different village. He has asserted in his cross-examination that he had seen the accused persons taking away the deceased along with them. He has denied the suggestion of giving false evidence. 6. P.W.-1 Somwari, who is the mother of the deceased, P.W.-2 Chandra Mohan Purty son of Gardi Purty, who also claimed to be related as brother of the deceased, and P.W.-3 Mahti Purty, the father of the deceased, have supported the case as eye-witnesses to the occurrence in more or less the same manner as stated by the informant. 6. P.W.-1 Somwari, who is the mother of the deceased, P.W.-2 Chandra Mohan Purty son of Gardi Purty, who also claimed to be related as brother of the deceased, and P.W.-3 Mahti Purty, the father of the deceased, have supported the case as eye-witnesses to the occurrence in more or less the same manner as stated by the informant. They have also stated that in evening, the accused persons came and took the deceased along with them and after going to some distance, the accused Babu Ram caught hold the hands of the deceased Budh Ram and accused Jairam Hessa assaulted him by firearm, due to which he fell down and subsequently he died. They have also stated about the demand of levy and that the accused persons belonged to M.C.C. P.W.-2 Chandra Mohan Purty is also a witness to the fardbeyan and he has identified his signature on the fardbeyan which was marked Ext.1. They have identified the both the accused in the Court. There is nothing of much importance in the cross-examinations of these witnesses. 7. P.W.-4 Mahti Champia and P.W.-5 Burhan Singh Purty are the co-villagers of the deceased and they have stated that upon the alarm raised by the deceased, they rushed to the place of occurrence and they saw that accused Babu Ram Hembram had caught both the hands of the deceased and Jairam Hessa had assaulted the deceased by firearm, and thereafter they fled away towards the forest. These witnesses have also identified the accused in the Court. They have also stated that the deceased told them that the accused persons had demanded Rs.10,000/- from him. In their cross-examinations, their attention was drawn towards their statements given before the police, but that is not of any importance, in view of the fact that the necessary contradictions have not been taken about those statements from the I.O. of the case. 8. P.W.-8 Arjun Hessa is the brother of accused Jairam Hessa, and he is the witness to the seizure-list upon which he has proved his signature as Ext.3. He is also witness to the inquest-report and he has identified his signature thereon. 9. P.W.-6 Dr. 8. P.W.-8 Arjun Hessa is the brother of accused Jairam Hessa, and he is the witness to the seizure-list upon which he has proved his signature as Ext.3. He is also witness to the inquest-report and he has identified his signature thereon. 9. P.W.-6 Dr. Bimal Kumar Pandit had conducted the post-mortem examination on the dead body of the deceased on 20.03.2006, and had found the following ante-mortem injuries on the dead body:- (i) A wound of entry elliptical in shape of size 1½ long and ¾ in breadth in epigastric area just lateral to the midline and just below the coastal margin. Margins of wound inverted, ragged and charring of skin around the opening of entry wound with deposition carbon particles around the wound of entry within 6” radius unevenly distributed. (ii) Abdomen – There was rupture of anterior and posterior wall of stomach. Left lobe of lever, medial margin of spleen, upper pole of kidney with laceration of soft tissues. Bullet found lodged in the posterior wall of abdomen on left lateral to the vertebral column. There were blood and blood clots present in side abdominal cavity. (iii) Heart – right chamber full of blood and left was empty. (iv) Urinary bladder contained 30ml of urine. This witness has stated that cause of death was haemorrhage and shock caused by the bullet injury. He also stated that the time elapsed since death was more than six hours, but within 24 hours. He has proved the post-mortem report to be in his pen and signature, which was marked Ext.2. In his cross-examination, this witness has stated that the bullet was fired from a short distance. 10. P.W.-9 Ajay Kumar Panjikar is the I.O. of the case. This witness has stated that on 19.03.2006 he was posted at Tonto Police Station. He got a rumour at about 10.00 A.M., that someone was murdered at village Kenjra. He made the necessary sanha entry and proceeded towards the village. At about 01.00 P.M., he reached the village and he recorded the fardbeyan of the informant, which he has identified and the same was marked Ext.4. He prepared the inquest report of the dead body and has proved the same, which was marked Ext.5. He made the necessary sanha entry and proceeded towards the village. At about 01.00 P.M., he reached the village and he recorded the fardbeyan of the informant, which he has identified and the same was marked Ext.4. He prepared the inquest report of the dead body and has proved the same, which was marked Ext.5. He took over the charge of investigation and inspected the place of occurrence, which is a forest area in village Kenjra, Tola Jagda, on the road where he found the dried blood stains. He recorded the statements of the witnesses and he sent the dead body for post-mortem examination. He raided the house of Jairam Hessa, who was found absconding. He returned back to Police Station and instituted the F.I.R., which he has proved and the same was marked Ext.6. He also raided the house of Babu Ram Hembram, who was also found absconding. On 04.04.2006, he gave application for remand of Babu Ram Hembram, as on that date he was in custody in connection with another case. He arrested accused Jairam Hessa from his house, and seized a mobile phone from him and also recorded his confessional statement. After completing the investigation, he submitted the charge-sheet in the case. In his cross-examination, this witness has stated that the distance of Regrahatu from the Police Station is about 21 kms., and the distance of Tola Jagda from village Kenjra is about 10 to 11 kms. This witness has also stated that the house of the deceased from the place of occurrence was at a distance of about 500 to 600 meters, but he had not recorded the same in the case diary. He had not seized the blood stains from the place of occurrence, nor he had prepared any sketch map of the place of occurrence. He has denied the suggestion of making faulty investigation. 11. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein they have denied the evidence against them. No evidence was adduced by the defence. On the basis of the evidence on record, the accused persons have been convicted and sentenced by the Trial Court below, as aforesaid. 12. Learned counsel for the appellants submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law. On the basis of the evidence on record, the accused persons have been convicted and sentenced by the Trial Court below, as aforesaid. 12. Learned counsel for the appellants submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law. It is submitted by learned counsel that though the charge was also framed for the offences under Sections 387/34 of the Indian Penal Code and Section 17 of the C.L.A. Act, but both the accused have been acquitted of these charges. Learned counsel submitted that it is admitted by the informant that the accused persons belonged to different village and as such, it is doubtful that the accused persons were known to the informant from before. Learned counsel further submitted that there is delay in lodging the F.I.R., in as much as, the occurrence had taken place on 17.03.2006, whereas the fardbeyan was recorded on 19.03.2006, and there is no explanation for this delay. Learned counsel further submitted that even the evidence of P.W.-6 Dr. Bimal Kumar Pandit and the post-mortem report proved by him, do not support the prosecution case, in as much as, the Doctor has stated that time elapsed since death was more than six hours, but within 24 hours, whereas the post-mortem was conducted on 20.03.2006 and admittedly the occurrence had taken place on 17.03.2006. Learned counsel accordingly, submitted that in the facts of this case, the prosecution has failed to bring home the charges against the appellants beyond all reasonable doubts and the appellants were entitled at least to the benefits of doubt. 13. Learned counsel for the State on the other hand, has opposed the prayer, submitting that all the material witnesses have fully supported the prosecution case as eye witnesses to the occurrence, stating that both these appellants had taken away the deceased, as the deceased could not meet the demand of Rs.10,000/- of levy, and after taking the deceased to some distance, the accused Babu Ram Hembram caught hold both the hands of the deceased and the accused Jairam Hessa assaulted him by firearm, due to which the deceased subsequently died. Not only the family members of the deceased have supported the case, rather, the persons residing nearby, namely, P.W.-4 Mahti Champia and P.W.-5 Burhan Singh Purty have also supported the prosecution case stating that upon the alarm raised by the deceased, they rushed there and they saw the occurrence. The ocular evidence of these witnesses is fully corroborated by the medical evidence of P.W.-6 Dr. Bimal Kumar Pandit, and the post-mortem report proved by him as Ext.2, who had found the firearm injury on the body of the deceased. Learned counsel accordingly, submitted that the prosecution has been able to bring home the charges against both the accused beyond all reasonable doubts and there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below. 14. Having heard learned counsels for both the sides and upon going through the record, we find that the prosecution case is fully supported by the eye witnesses, who are, P.W.-7 Chandra Mohan Purty, the informant of the case as also P.W.-1 Somwari, the mother of the deceased, P.W.-3 Mahti Purty, the father of the deceased and P.W.-2 Chandra Mohan Purty, son of Gardi Purty. They have fully supported the prosecution case stating that both the accused, upon non-fulfillment of demand of levy, carried the deceased Budh Ram Purty along with them and after going to some distance, the accused Babu Ram Hembram caught hold both the hands of the deceased and Jairam Hessa assaulted the deceased by firearm due to which, after about one hour, deceased died. The witnesses have stated that the deceased could not be taken to the hospital. The time of occurrence is in the evening at about or after sunset, and the place of occurrence being village situated in remote forest area, we find that there was reasonable difficulty in taking the deceased to the hospital. The deceased died after about one hour of the occurrence. P.W.-4 Mahti Champia and P.W.-5 Burhan Singh Purty have also supported the prosecution case as eye witnesses and they rushed towards the place of occurrence upon the alarm raised by the deceased himself, and saw the occurrence. The evidence of P.W.-6 Dr. The deceased died after about one hour of the occurrence. P.W.-4 Mahti Champia and P.W.-5 Burhan Singh Purty have also supported the prosecution case as eye witnesses and they rushed towards the place of occurrence upon the alarm raised by the deceased himself, and saw the occurrence. The evidence of P.W.-6 Dr. Bimal Kumar Pandit, and the post-mortem report proved by him as Ext.2, clearly show that the deceased had died after suffering the bullet injury and the bullet was also recovered by the Doctor from the dead body. The charring of skin around the opening of entry wound with deposition carbon particles around the wound of entry, as found by the Doctor, clearly shows that the assault was made from a close range. Though the Doctor has stated that the death was caused within 24 hours, but the prosecution case cannot be disbelieved on this score only, as the case is fully supported by the eye witnesses to the occurrence, who include the independent witnesses also. The submission of learned counsel for the appellant that there is delay in lodging the F.I.R., is also of no help to the defence, as we find from the record that the distance from the Police Station is about 21 kms., as stated by the I.O. of the case. The deceased and his family members were resident of Tola Jagda of village Kenjra and even the distance between the tola and the main village was about 10 to 11 kms., as stated by the I.O. The place being a remote forest area and the occurrence having been taken place in the evening of 17.03.2006, the informant P.W.-7 Chandra Mohan Purty has stated that he could inform the police only on the next day and thereafter, on the next day the police arrived at the place of occurrence. We find that taking into consideration the fact that the place of occurrence is in a remote village surrounded by forest, and extremists prone area, this delay has been fully explained in the case. We find from the record that the prosecution has been able to bring home the charges against both the appellants beyond all reasonable doubts and there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, worth interference by this Court. 15. We find from the record that the prosecution has been able to bring home the charges against both the appellants beyond all reasonable doubts and there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, worth interference by this Court. 15. For the foregoing reasons, we do not find any illegality in the impugned Judgment of conviction dated 08th August, 2008 and Order of sentence dated 13th August, 2008, passed by the learned 1st Additional Sessions Judge, West Singhbhum at Chaibasa, in S.T. No. 191 of 2006, convicting and sentencing the appellants Jairam Hessa and Babu Ram Hembram for the offences under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act, which we hereby, affirm. Both the appellants are in custody undergoing the sentence. 16. There is no merit in this appeal and the same is accordingly, dismissed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment. Appeal dismissed.