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2018 DIGILAW 2508 (JHR)

Manager Murmu v. State of Jharkhand

2018-11-20

H.C.MISHRA, RATNAKER BHENGRA

body2018
JUDGMENT : H.C. Mishra, J. Both these appeals arise out of the same impugned Judgment and as such they were heard together and are being disposed of by this common Judgment. 2. Heard learned counsels for the appellants and learned counsels for the State. 3. The appellants are aggrieved by the impugned Judgment of conviction dated 19.09.2007 and Order of sentence dated 28.09.2007, passed by the learned VI Addl. Sessions Judge, (F.T.C.-3), Godda, in Sessions Trial No. 12 of 1996/51 of 2007, whereby, these appellants have been found guilty and convicted for the offences under Sections 148 and 302/149 of the Indian Penal Code. Upon hearing on the point of sentence, the appellants have been sentenced to undergo R.I. for life for the offence under Sections 302/149 of the Indian Penal Code, and R.I. for two years for the offence under Section 148 of the Indian Penal Code, and both the sentences were directed to run concurrently. 4. The prosecution case was instituted on the basis of fardbeyan of the informant Sanjhala Marandi, the son of the deceased Dhena Marandi, recorded on 13.12.1990 at Lalmatiya Police Station, at 12.30 PM, wherein, he has stated that on the same day at about 11.00 AM, he was ploughing his field along with his father Dhena Marandi, situated in Village Gorakhpur, when, 20 to 25 persons came there armed with lathi, tangi, bow and arrows, in whom the informant could identify Bhaiya Tudu, Pradhan Tudu, Telo Tudu, the eldest son of Pradhan Tudu, whose name he did not know, Mangal Tudu, Manager Murmu and Manjhala Kisku. Upon seeing them, the informant and his father tried to flee away, leaving the plough and oxen, and they were chased by the accused persons. The informant could flee away, but his father was apprehended by the accused persons at some distance, and they started assaulting his father by lathi, tangi etc., near a palm tree, which the informant saw hiding himself at some distance. Thereafter the accused persons dragged his father and left him in the field, which was being ploughed by them. In the meantime, several villagers assembled there, whereupon accused persons fled away, taking three oxen and one cow and the plough with them. While fleeing away, the accused persons shot arrows upon the informant also, which did not hit him. Thereafter the accused persons dragged his father and left him in the field, which was being ploughed by them. In the meantime, several villagers assembled there, whereupon accused persons fled away, taking three oxen and one cow and the plough with them. While fleeing away, the accused persons shot arrows upon the informant also, which did not hit him. After the accused persons fled away, the informant went near his father and found him dead. He has stated that the occurrence had taken place due to land dispute relating to same land, which was being ploughed by them, for which, there was a case also in Godda Court. The accused had taken the oxen, cow and plough worth about rupees ten thousand along with them. Claiming that the aforesaid accused persons had committed the murder of his father, assaulting him by lathi and tangi on his head, the fardbeyan was given by the informant, on the basis of which, Boarijore (Lalmatiya) P.S. Case No. 144 of 1990, corresponding to G.R. No. 1160 of 1990, was instituted against the accused persons, for the offences under Sections, 147, 148, 149, 302, 323, 325, 447 and 379 of the Indian Penal Code, and investigation was taken up. 5. The impugned Judgment shows that after investigation, the police submitted the charge-sheet against four accused persons, namely, Bhaiya Tudu, Telo Tudu, Manager Murmu and Manjhala Kisku, and later on, supplementary charge-sheet was submitted against the accused persons, namely, Pradhan Tudu and Patwari Tudu. The impugned Judgment also shows that the accused Bhaiya Tudu died before commitment of the case and as such, the proceeding against him was dropped, and during the pendency of trial, accused Telo Tudu also died and the proceeding was dropped against him as well, while accused Patwari Tudu was declared juvenile and hence, only three accused persons, namely, Pradhan Tudu, Manager Murmu and Manjhala Kisku had faced the trial. 6. Upon commitment of the case to the Court of Session, charge was framed against the accused persons, for the offences under Sections 148, 379, 302 and 307 of the Indian Penal Code, and upon the accuseds' pleading not guilty and claiming to be tried, they were put to trial. In course of trial, altogether thirteen witnesses were examined by the prosecution, including the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. In course of trial, altogether thirteen witnesses were examined by the prosecution, including the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. The Investigating Officer has not been examined in the case and as such, the formal FIR, endorsement on the fardbeyan, the inquest report of the dead body and the seizure list were proved with the help of a formal witness P.W.-13 Prabhu Nath Mahto, and were marked as Exhibits-4 to 7 respectively. Out of the material witnesses examined, P.W.-5 Mubarak Ansari and P.W.-9 Josef Murmu have stated nothing against the accused persons, and P.W.-12 Patwari Kisku was only tendered by the prosecution. 7. P.W.-1 Sanjhala Marandi, the son of the deceased, is the informant of the case and eyewitness to the occurrence. He has stated that the occurrence had taken place on 13.12.1990 at about 11.00 AM. He was ploughing his field along with his father, with two ploughs, three oxen and one cow. In the nearby fields, Master Kisku, Patwari Kisku, Sahban Ansari and Mubarak Ansari were also there, who had seen the occurrence. While they were ploughing the field, about fifty persons came and surrounded them. They were armed with bow, arrows, tangi and lathi. Both of them started to flee away, and this witness could manage to flee away, but his father was apprehended after two fields, near a palm tree, and the accused persons assaulted his father by tangi, causing his death. Pradhan Tudu, Bhaiya Tudu, Telo Tudu, Manager Murmu, Manjhala Kisku and the eldest son of Pradhan Tudu, whose name he did not know, had assaulted his father. Out of about 50 persons, he could identify only the aforesaid accused persons. The dead body of his father was dragged from the palm tree to the field, which they were ploughing. The accused persons had also taken away the oxen, cow and plough, valued at about rupees ten thousand. He has stated that the field that he was ploughing was in his possession and the accused persons had no right over that. He went to the Police Station and gave his statement to the police, which was recorded by the police, on which, he gave his thumb impression, and Babulal Marandi, Talwan Marandi and Rokan Marandi had put their signatures. He has identified his fardbeyan, which was marked Exhibit-1. He went to the Police Station and gave his statement to the police, which was recorded by the police, on which, he gave his thumb impression, and Babulal Marandi, Talwan Marandi and Rokan Marandi had put their signatures. He has identified his fardbeyan, which was marked Exhibit-1. He has identified the accused present in the Court and claimed to identify the other accuseds also. In his cross-examination, this witness has stated that there was a proceeding under Section 145 Cr.P.C., between them for the same land, and has denied the suggestion that proceeding was decided against him, rather he has stated that it was decided in his favour. He has denied the suggestion that he had no document to show that he had won that proceeding. He could not give the details of the land in question. He has stated that the land was not recorded in the name of Raska Tudu, rather, it was recorded in the name of Padu Tudu. Raska Tudu and Padu Tudu were own brothers. He had no knowledge about the father's name of Bhaiya Tudu and Pradhan Tudu and he also did not know the sons of Raska Tudu. He has stated that Hadu Tudu was the son of Padu Tudu, who had a daughter Salgi, who was married to his father. He has stated that there was lot of blood at the place of occurrence and there were dragging marks of the dead body also in the field. The palm tree, where his father was assaulted, was after two fields and the field in which the said palm tree was situated, belonged to Pradhan Kisku, who used to plough that field. His house is situated at a distance between 100 to 150 meters from the place of occurrence, and when the accused persons apprehended his father, they left chasing this witness. He has stated that he had not taken the dead body to the Police Station, rather, after lodging the case, the police came to the place of occurrence. He has denied the suggestion of giving false evidence. 8. He has stated that he had not taken the dead body to the Police Station, rather, after lodging the case, the police came to the place of occurrence. He has denied the suggestion of giving false evidence. 8. P.W.-2 Talwan Marandi and P.W.-6 Rokan Marandi, the other sons of the deceased, P.W.-7 Salgi Tudu, the wife of the deceased, P.W.-8 Bity Marandi, the daughter of the deceased, and P.W.-3 Babulal Marandi, have also supported the case as eyewitnesses to the occurrence, more or less in the same manner, as stated by P.W.-1 Sanjhala Marandi. P.W.-2 Talwan Marandi has also stated that the statement about the occurrence was given before the police, on which, the informant Sanjhala Marandi had put his thumb impression, and this witness, Babulal Marandi and Rokan Marandi had also put their signatures. He had identified all these signatures on the fardbeyan, which were marked Exhibit-2. P.W.-3 Babulal Marandi has also stated that near the place of occurrence, one tooth of the deceased and one stick were found. The bloodstained soil was also visible, and these things were seized by the police, on which, he had put his signature. He has also stated that the inquest report of the dead body was prepared, on which also, he had put his signature and he has proved the signature on the inquest report and the seizure list, which were marked as Exhibits 2/1 and 2/2. All these witnesses have also stated that the occurrence had taken place due to land dispute between the parties. P.W.-7 Salgi Tudu has, however, admitted in her cross-examination, that by the time she reached at the place of occurrence, her husband had already died and the accused persons had fled away. These witnesses, except P.W.-2 Talwan Marandi, have also denied the suggestion in their cross-examinations that 145 Cr.P.C. proceeding relating to the land in question was decided in favour of the accused persons. Their attentions were drawn towards their statements given before the police, which they have confirmed. Since the Investigating Officer has not been examined in the case, the necessary contradictions could not be taken from the I.O. However, in the interest of justice, we have looked into the case diary, which shows that none of these witnesses, except, P.W.-8 Bity Marandi, were the eyewitnesses to the occurrence, rather, they had supported the case as hearsay witnesses before the police. 9. 9. P.W.-10 Lakhan Hembrom has also supported the prosecution case as eyewitness to the occurrence. He has stated that there was a noise, while the deceased was ploughing the field. Accused Bhaiya Tudu, Manager Murmu, and Talo Tudu came there and they assaulted the deceased by Kulhari causing his death. Thus, from the evidence of this witness, it is apparent that out of the accused persons facing trial, he has named only the accused Manager Murmu. However, in his cross-examination, he has stated that he had not given any statement before the police and for the first time, he was deposing in the Court. He has also stated that by the time, he reached the place of occurrence, the deceased had already died and the accused persons had fled away. He has also stated that he had not given any statement before the police that the accused Bhaiya, Manager and Talo had assaulted the deceased to death. He has admitted in his cross-examination that 145 Cr.P.C. proceeding was decided in favour of the accused persons. 10. P.W.-11 Sahban Ansari has also supported the case as eyewitness to the occurrence, stating that at the time of occurrence, he was in his house, which was near the field of occurrence. Upon noise, he went to the field and saw the accused persons armed with bow, arrows, bhala, kulhari etc. He saw that Dhena Marandi and Sanjhala Marandi started to flee away from the place of occurrence, but they were chased and apprehended by the accused persons. Sanjhala Marandi managed to flee away, but the accused persons assaulted Dhena Marandi by kulhari, causing his death. He has specifically stated that accused Pradhan Tudu had assaulted Dhena Marndi by kulhari. The other persons, whom he could identify amongst the accused persons, were Bhaiya Tudu and Telo Tudu. He has admitted in his cross-examination that accused Bhaiya Tudu had died. He has also stated that his statement was recorded by the police at the place of occurrence itself. His attention was also drawn towards his statement given before the police, but as stated earlier, the necessary contradiction could not be taken from the I.O., as he has not been examined in the case. He has also stated that his statement was recorded by the police at the place of occurrence itself. His attention was also drawn towards his statement given before the police, but as stated earlier, the necessary contradiction could not be taken from the I.O., as he has not been examined in the case. The case diary, which we have looked into in the interest of justice, however, shows that even this witness had not stated before the police in the manner as deposed by him, rather, he had stated before the police that by the time he reached the place of occurrence, the deceased had died. 11. P.W.-4 Dr. Kalanand Choudhary had conducted the post-mortem examination on the dead body of the deceased on 14.12.1990, and had found the following ante-mortem injuries on the dead body:- (i) Fracture of the skull bone on occipital area. (ii) Multiple abrasions over the body covered with blood clots. On dissection – Brain found haemorrhagic at number of areas specially posterior part of the brain. Nature of injury No.(i) grievous, caused by hard blunt substance. He has stated that cause of death was due to shock and haemorrhage, due to above mentioned injuries. He has proved the post-mortem report to be in his pen and signature, which was marked as Exhibit-3. 12. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein, they have denied the evidence against them. The accused Pradhan Tudu has also stated that he was a Teacher at Primary School, Katoria, and on the alleged date of occurrence, he was in the said school from 10.00 AM to 4.00 PM., and they have been falsely implicated in the case, in order to grab their land. 13. The defence has examined D.W.-1 Udit Rai, the Headmaster of Primary School, Katoria, Kahalgaon, District Bhagalpur, in the State of Bihar, and he has proved the attendance register of the school, from which, he has proved that on 13.12.1990, the accused Pradhan Tudu was working in the said school from 10.00 AM to 4.00 PM. He has stated that the accused had put his signature on the attendance register in his presence. The attendance register was marked as Exhibit-DA. He has stated that the accused had put his signature on the attendance register in his presence. The attendance register was marked as Exhibit-DA. We also find from the case diary, which we have perused in the interest of justice, that the statement of D.W.-1 Udit Rai was also recorded by the police during investigation of the case, and he had given the same statement before the police also. Thus, it is not the case, that D.W.-1 Udit Rai has been examined for the first time in the Court, to prove the alibi of the accused Pradhan Tudu. 14. The defence has also brought on record the certified copy of the order passed in the proceeding under Section 145 Cr.P.C., relating to the land in question, which was marked Exhibit-DB. This shows that the land in dispute was recorded in the names of Raska Tudu and Padu Tudu, and the 145 Cr.P.C., proceeding was decided in favour of the accused persons and against the informant side. 15. Learned counsels for the appellants have 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, inasmuch as, the witnesses have not given true story of the occurrence. Admittedly, the occurrence had taken place due to the land dispute between the parties and the case is supported mainly by the interested witnesses only, who are the near relatives of the deceased, and all of them have stated that the occurrence had taken place due to land dispute between the parties, in which, there was a proceeding under Section 145 Cr.P.C. also, between them. The informant P.W.-1 Sanjhala Marandi has stated that the said proceeding was decided in his favour and the other witnesses have denied the suggestion that it was decided in favour of the accused persons, but, the certified copy, which has been brought on record by the defence, clearly shows that it was decided in favour of the accused persons. Though these witnesses have tried to become eyewitnesses to the occurrence, and their attentions were also drawn towards the statements given by them before the police, but the defense has been vitally prejudiced due to the fact that the I.O. of the case has not been examined, and necessary contradictions could not be taken from him. Though these witnesses have tried to become eyewitnesses to the occurrence, and their attentions were also drawn towards the statements given by them before the police, but the defense has been vitally prejudiced due to the fact that the I.O. of the case has not been examined, and necessary contradictions could not be taken from him. Learned counsels further submitted that there is allegation against all the accused persons to have assaulted the deceased by lathi etc., but only one vital injury was found on the dead body, which also makes the prosecution case absolutely doubtful. Submitting that the prosecution case is mainly supported by the highly interested witnesses, who have tried to become eyewitnesses to the occurrence, in spite of the fact that they were actually not the eyewitness to the occurrence, and due to non-examination of the Investigating Officer, the defence has been vitally prejudiced, learned counsels submitted that it is a fit case, in which, the accused appellants ought to have given at least the benefits to doubt. 16. Learned counsels for the State, on the other hand, have opposed the prayer, submitting that the witnesses have fully supported the prosecution case, stating that these appellants had assaulted the deceased causing his death at the spot and their ocular evidence is fully corroborated by the medical evidence of P.W.-4 Dr. Kalanand Choudhary, and the post-mortem report proved by him as Exhibit-3. As such, there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, worth any interference by this Court. 17. Having heard learned counsels for both the sides and upon going through the record, we find that the occurrence had taken place due to land dispute between the parties, as the land in dispute was being claimed by the informant's side, stating that the land stood recorded only in the name of Padu Tudu, the father of Salgi Tudu, i.e., the wife of the deceased, and being the only daughter of her father, the land was given to her, which was in their possession. The informant has denied the suggestion that the land was recorded in favour of Raska Tudu, the brother of Padu Tudu. The informant has denied the suggestion that the land was recorded in favour of Raska Tudu, the brother of Padu Tudu. In his cross-examination, he has stated that he had no knowledge about the sons of Raska Tudu, or the names of father of accused Bhaiya Tudu and Pradhan Tudu, but the FIR clearly shows that this witness had named these accused persons with the names of their respective father. The dispute for the land in question is admitted by all the witnesses, including this witness and thus, it is apparent that he was concealing the real facts, during his deposition, which were known to him. The informant and his family members have denied the suggestion that the proceeding under Section 145 Cr.P.C., was decided in favour of the accused persons, but the fact remains that the 145 Cr.P.C. proceeding was decided in favour of the accused persons, which the accused persons have proved by bringing on record Exhibit-DB, which also shows that the land was recorded jointly in the names of the two brothers, Raska Tudu and Padu Tudu. The other witnesses, who are family members of the deceased, namely, P.W.-2 Talwan Marandi, P.W.-6 Rokan Marandi, other sons of the deceased and P.W.-7 Salgi Tudu, the wife of the deceased, though have also supported the case as eyewitnesses to the occurrence, but the case diary shows that all of them had given their statements as hearsay witnesses before the police. Even P.W.-7 Salgi Tudu has admitted in her cross-examination that when she came to the place of occurrence, she found her husband dead and all the accused persons had fled away. Similar is the case with P.W.-3 Babulal Marandi, P.W.-10 Lakhan Hembrom and P.W.-11 Sahban Ansari. In fact, P.W.-11 Sahban Ansari, has stated that it was the accused Pradhan Tudu, who had assaulted the deceased by Kulhari, but his being the eyewitness to the occurrence, is not supported from the case diary. These facts clearly indicate that the witnesses have not given the true story of the occurrence, rather most of them have made improvements upon their earlier versions given before the police. Even the ocular evidence of these witnesses is not supported by the evidence of P.W.-4 Dr. These facts clearly indicate that the witnesses have not given the true story of the occurrence, rather most of them have made improvements upon their earlier versions given before the police. Even the ocular evidence of these witnesses is not supported by the evidence of P.W.-4 Dr. Kalanand Choudhary, and the post-mortem report proved by him, as only one vital injury was found on the dead body, in spite of allegation against several persons to have assaulted the deceased. We also find from the record that the evidence of D.W.-1 Udit Rai cannot be discarded only due to the fact that it speaks about the alibi of the accused Pradhan Tudu, in which, he has stated that Pradhan Tudu was present in the school on the date of occurrence, which is situated in the district of Bhagalpur, in the State of Bihar. The fact remains that the case diary shows that his statement was also recorded during investigation by the police, in which, he had given the same statement. We are of the considered view that non-examination of the Investigating Officer in the case, has vitally prejudiced the defence, as most of the witnesses, who were not the eyewitnesses to the Cr.Appeal(DB)No.1446 of 2007 with Cr.Appeal(DB)No.1463 of 2007 occurrence, had tried to become the eyewitnesses to the occurrence, and the fact about the whereabouts of accused Pradhan Tudu on the date of occurrence, could not be taken from the Investigating Officer by the defence due to his non-examination. As such, even though the interested witnesses have supported the prosecution case, it is a fit case, in which, the appellants ought to have given at least the benefits of doubt, and the impugned Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law. 18. For the foregoing reasons, the impugned Judgment of conviction dated 19.9.2007 and Order of sentence dated 28.9.2007, passed by the learned VIAddl. Sessions Judge, (F.T.C.-3), Godda, in Sessions Trial No. 12 of 1996/51 of 2007, convicting and sentencing the appellants Pradhan Tudu, Manager Murmu and Manjhala Kisku, for the offences under Sections 148 and 302/149 of the Indian Penal Code, are hereby, set aside. Consequently, the appellants are given the benefits of doubt and they were acquitted of the charges. The appellant Pradhan Tudu is in custody, undergoing the sentence. Consequently, the appellants are given the benefits of doubt and they were acquitted of the charges. The appellant Pradhan Tudu is in custody, undergoing the sentence. He is directed to be released and set at liberty forthwith, if his detention is not required in any other case. The appellants, Manager Murmu and Manjhala Kisku are on bail, and they are discharged from the liabilities of their respective bail bonds. 19. Both these appeals are accordingly, allowed. Let the Lower Court Record be sent back to the Court concerned forthwith, along with the copy of this Judgment.