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2018 DIGILAW 2708 (JHR)

Daso Marandi v. State of Jharkhand

2018-12-11

H.C.MISHRA, RATNAKER BHENGRA

body2018
JUDGMENT : Heard learned amicus curiae appointed by the Court for the appellants and learned counsel for the State. 2. At the very outset it may be stated that originally, there were four appellants in the case, but during the pendency of appeal, two appellants, namely, appellant No.2 Sufal @ Sapal Tudu and appellant No.4 Dharati Marandi died, and accordingly their names were deleted from the array of appellants by order dated 29.10.2018. As such, there are only two surviving appellants now, i.e., Daso Marandi and Siru Tudu @ Shiru Tudu, and we would be confining our discussions in the Judgment, as far as practicable, as regards the surviving appellants only. 3. The appellants are aggrieved by the impugned Judgment of conviction dated 28.06.2007 and order of sentence dated 6.07.2007, passed by the learned Sessions Judge, Godda, in S.C. No.275 of 1986, whereby the appellants have been found guilty and convicted for the offence under Sections 302/149 of the Indian Penal Code, and upon hearing on the point of sentence, they have been sentenced to undergo R.I. for life, with fine of Rs.5000/-each, for the said offence. 4. The prosecution case was instituted on the basis of the fardbeyan of the informant Sugda Murmu, given at Lalmatia Police Station, in the District of Godda, on 23.11.1982, in which, it is stated that the informant side had transplanted the paddy crops in their agriculture field, situated in village Dhankunda, which was ready for harvesting. On 23.11.1982 at about 12.00 Noon, the accused Daso Marandi along with 20 to 25 other persons, were harvesting the paddy crop, whereupon, the informant along with his brother Kongress Murmu, cousin Bhola Murmu, Bharat Murmu, Chandar Murmu and Pradhan Murmu went to the field and objected the harvesting of paddy crop by the accused persons, upon which, there was an altercation and it is alleged that the accused persons assaulted the informant’s side, in which, there is allegation that both these surviving appellants and other accused assaulted Bhola Murmu, causing his death at the spot. The other accused persons had assaulted Kongress Murmu, and other persons, injuring them as well. Kongress Murmu subsequently died at hospital. So far as allegation of assault on the deceased persons are concerned, it is stated that they were assaulted by Chhewni (it has come in the evidence that Chhewni was used for harvesting paddy), khanti, bhala, etc. The other accused persons had assaulted Kongress Murmu, and other persons, injuring them as well. Kongress Murmu subsequently died at hospital. So far as allegation of assault on the deceased persons are concerned, it is stated that they were assaulted by Chhewni (it has come in the evidence that Chhewni was used for harvesting paddy), khanti, bhala, etc. On the basis of the fardbeyan given by the informant Sugda Murmu, Boarijore P.S. Case No.74 of 1982, corresponding to G.R. No.594 of 1982, was instituted for the offences under Sections 147, 148, 149, 324, 307, 323, 341 and 302 of the Indian Penal Code, against nine named accused persons, including these appellants, and investigation was taken up. 5. The impugned Judgment shows that the charge-sheet and supplementary charge-sheet were submitted against 14 accused persons in all, out of whom 8 accused persons had died before framing of the charge, and six accused persons, namely, Daso Marandi, Bhushan Murmu, Shiru Tudu, Lobey Hembrom, Dharti Marandi and Sapal @ Sufal Tudu, were put to trial. Out of these accused persons, Bhushan Murmu and Lobey Hembrom were acquitted by the Trial Court below, whereas, the other four accused persons were convicted and sentenced by the Trial Court below, who had filed the present appeal, and during the pendency of appeal, two of them died and presently there are only two appellants before us. 6. After commitment of the case to the Court of Session, charge was framed against these accused persons for the offence under Sections 302/149 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, nine witnesses were examined by the prosecution, including the I.O. and the Doctor, who conducted the post-mortem examinations on the dead bodies of the deceased. 7. P.W.-7 Sugda Murmu is the informant of the case. This witness has stated that the occurrence had taken place on 23.11.1982. He has stated that he, along with Bhola Murmu, Kongress Murmu, Chandar Murmu, Bharat Murmu and Pradhan Murum had gone to harvest the paddy crop in Tala Bahiyar. When they reached there, they saw that the accused Daso Marandi and 13 other persons were harvesting their field. They objected the same. Whereupon, the accused persons started assaulting the informant’s side. He has stated that he, along with Bhola Murmu, Kongress Murmu, Chandar Murmu, Bharat Murmu and Pradhan Murum had gone to harvest the paddy crop in Tala Bahiyar. When they reached there, they saw that the accused Daso Marandi and 13 other persons were harvesting their field. They objected the same. Whereupon, the accused persons started assaulting the informant’s side. Daso Marandi, Siru Tudu and Munshi Murmu assaulted Bhola Murmu by chhewni, khanti and bhala, due to which, Bhola Murmu died at the spot. The other accused persons also assaulted Kongress Murmu and other persons by chhewni and other weapons. After committing the offence, the accused persons fled away. He has stated that his fardbeyan was recorded by police at the place of occurrence, and he has proved the fardbeyan, which was marked Ext.-2. He has stated that Kongress Murmu died after reaching hospital. The inquest reports of the dead bodies were also prepared. He has proved the inquest report of the dead body of Kongress Murmu, which was marked as Ext.-3, and has identified the signature of Chandar Murmu on the inquest report of the dead body of Bhola Murmu, which was marked Ext.-5. He had shown the place of occurrence to the police. The land in dispute was recorded in the name of Sugda Soren, who had two daughters, Sugi Soren and Mani Soren. From his evidence, it appears that the informant’s side are the heirs of Sugi Soren, whereas the accuseds' side are the heirs of Mani Soren. This witness has also stated that prior to the occurrence, there was a proceeding under Section 144 of the Cr.P.C., between the parties, which was converted into Section 145 of the Cr.P.C. proceeding. Section 145 Cr.P.C. proceeding could not be decided prior to the occurrence. He has identified the accused Daso Marandi in the Court and claimed to identify the other accused persons also. In his cross-examination, this witness has admitted that the proceeding under Section 145 of the Cr.P.C., was decided against him and he had filed a revision against the said order, but he had no knowledge as to what order was passed in that revision. He has also stated that his first statement was recorded at the place of occurrence, near the dead body of the deceased. He has also stated that his first statement was recorded at the place of occurrence, near the dead body of the deceased. This witness has also admitted in his cross-examination that at the time of occurrence, harvesting was going on in nearby fields also, but no one had come to the place of occurrence, in spite of the noise during the occurrence, and he has also admitted that all the witnesses are the family members only. He has denied the suggestion of giving false evidence. 8. The other witnesses, who have supported the prosecution case as eyewitnesses, are, P.W.-3 Bharat Murmu, P.W.-4 Chandar Murmu and P.W.-5 Pradhan Murmu, and all these persons have claimed to be assaulted and injured in the occurrence, though the prosecution has not proved their injuries. According to the evidence of P.W.-3 Bharat Murmu, the informant’s side had gone to harvest the paddy crop and they were also harvesting the paddy crop, when the accused’s side came and objected to it, and they made assaults. So far as the assault on the deceased Bhola Murmu is concerned, he has stated that Bhola Murmu was assaulted by both these appellants Daso Murmu and Siro Tudu and one Munshi, by chhewni, khanti and bhala, due to which, he died at the spot. Kongress Murmu was assaulted by Sufal Tudu and other co-accused persons. He has stated that while Kongress Murmu was taken to hospital, he died in the way. In his cross-examination also, this witness has stated that the accused persons had come to the place of occurrence, after the informant’s side and by that time, some portion of paddy crop was harvested by the informant’s side. The accused persons came and objected to harvest the paddy crop, claiming the land in question to be their own. He has stated that there was an altercation between both the sides for about one hour and thereafter, the assaults started from both the sides. This witness has also admitted in his cross-examination that for the disputed land, there was a proceeding under Section 145 Cr.P.C., between the parties, which was decided in favour of the accused Daso Marandi, and they had filed revision against that order. This witness has also admitted in his cross-examination that for the disputed land, there was a proceeding under Section 145 Cr.P.C., between the parties, which was decided in favour of the accused Daso Marandi, and they had filed revision against that order. P.W.-4 Chandar Murmu has stated in his evidence that while the informant’s side had gone for harvesting their paddy crop, the accused persons were already harvesting the crop, and the informant’s side objected the accuseds’ side for harvesting the paddy crop. He has also supported the manner of assault by both the appellants in more or less, in same manner, as stated by other witnesses, stating that the deceased Bhola died at the spot, whereas Kongress died at the hospital. In his cross-examination, this witness has stated that the proceeding under Section 145 Cr.P.C., was decided in favour of the accused persons. He has also stated that by the time, they had reached the place of occurrence, the paddy crop of the entire field had already been harvested. He has also admitted that no one else had come to the place of occurrence. The evidence of P.W.-5 Pradhan Murmu shows that the accused persons had gone to harvest the paddy crop, which was cultivated by the informant’s side. Informant had objected the harvesting, due to which, the occurrence had taken place, in which, both the deceased and other persons were assaulted in the same manner as stated by the other witnesses. He has also stated that the deceased Bhola Murmu died at the place of occurrence, whereas Kongress died after reaching the hospital. He is also the witness to the inquest report of the dead body of Bhola Murmu. In his cross-examination, this witness has stated that he had no knowledge that the proceeding under Section 145 of the Cr.P.C., was decided in favour of the accused persons, and he has denied the suggestion that he was concealing this fact knowingly. However, he has admitted that the proceeding under Section 145 of the Cr.P.C., was with respect to this land in dispute. He has also admitted in his cross-examination, that it is the fact that the paddy crop was cultivated by the accused persons and they were also harvesting it. All these three eyewitnesses have identified the accused in the Court and they have denied the suggestions of giving false evidence. 9. He has also admitted in his cross-examination, that it is the fact that the paddy crop was cultivated by the accused persons and they were also harvesting it. All these three eyewitnesses have identified the accused in the Court and they have denied the suggestions of giving false evidence. 9. P.W.-1 Chhito Marandi is the wife of the deceased Kongress Murmu, and P.W.-2 Makku Marandi is the wife of the deceased Bhola Murmu, and they have also supported the prosecution case as hearsay witnesses, stating that they were informed about the occurrence by Sugda Murmu. P.W.-2 Makku Marandi has stated that she had gone to the place of occurrence, and she had found the paddy crop of the entire land in dispute, harvested. 10. The evidences of all these material witnesses, i.e. P.Ws.-1 to 5 and 7, clearly show that their evidences were recorded after more than 23 years of the occurrence. 11. P.W.-6 is Dr. Bijay Kumar Bhagat, who has conducted the post-mortem examinations on the dead bodies of both of the deceased on 24.11.1982. On the dead body of the deceased Bhola Murmu, he had found the following ante-mortem injuries:- 1. Lacerated wound 1”x ½” x through and through on the left side of lower lip with injury of gums and the broken lower left incisor tooth with the socket. 2. Lacerated wound 1”x ½” x through and through on the upper lip midway with the injury to the gums and loss of both incisor and canines from the socket. 3. Lacerated wound 1”x ½” x upto bone deep obliquely on the left frontal part of the skull near hair line 1” lateral to mid line with underlying fracture of bone. 4. Lacerated wound 1 ½” x ½” x bone deep obliquely over left eye brow laterally with underlying fracture of bone. 5. Lacerated wound 1 ½” x ½” x bone deep transversely ½” behind injury No. 3 with underlying fracture of bone. 6. Lacerated wound 1 ½” x ½” x bone deep obliquely 1” behind and lateral to injury No. 5. 7. Lacerated wound 1” x ½” x through and through lower part of left ear. 8. Lacerated wound 1 ½” x ½” x through and through one the upper part of the left ear. On dissection -Scalp and skull was found conjested, membrane was conjested, brain contained haematoma. 7. Lacerated wound 1” x ½” x through and through lower part of left ear. 8. Lacerated wound 1 ½” x ½” x through and through one the upper part of the left ear. On dissection -Scalp and skull was found conjested, membrane was conjested, brain contained haematoma. He has stated that the nature of injuries on the dead body of Bhola Murmu were grievous, caused by hard and blunt substance, and death was caused due to shock and hemorrhage as the result of injuries. He has proved the post-mortem report of the dead body of Bhola Murmu, which was marked Ext.-1. On the same day, he had conducted the post-mortem examination on the dead body of Kongress Murmu and had found the following ante-mortem injuries on the dead body:- 1. Lacerated wound 1 ½” x ½” upto bone deep vertical on the right frontal part of skull 1½” lateral to midline and ½” forward to perietal emenence. 2. Incised wound 2½” x ½” x bone deep obliquely on the left perietal bone midway behind. 3. Incised wound 2½” x ½” x soft tissues and bone deep obliquely on the back of left hand 1” below wrist cutting the soft tissues and bone. 4. Bruise with lacerated wound ½” x ½” x ¼” on the back of right forearm midway. 5. Two incised wounds with the size of 2 ½” x ½” x bone deep and 2”x ½” x bone deep transversely on the back of the head, near the occipital region lower part midway. 6. Bruise 3”x1” obliquely on the back of right chest upper part midway. 7. Bruise 3”x1” obliquely on the back of left chest upper part mid way. On dissection -Scalp, skull and membrane were conjested, brain contained haematoma. He has stated that the nature of injuries were grievous and the injury Nos.1, 4, 6 and 7 were caused by hard and blunt substance, whereas injury Nos.2, 3 and 5 were caused by sharp cutting weapons. The death was caused due to shock and hemorrhage due to above injuries. He has proved the post-mortem report of the dead body of Kongress Murmu, which was marked Ext.-1/1. 12. P.W.-9 Surya Narayan Modi is the I.O. of the case. The death was caused due to shock and hemorrhage due to above injuries. He has proved the post-mortem report of the dead body of Kongress Murmu, which was marked Ext.-1/1. 12. P.W.-9 Surya Narayan Modi is the I.O. of the case. He has stated that on 10.11.1982, he was posted as Officer-Incharge of Lalmatia Police Station, on which date, he had recorded the fardbeyan of the informant, on the basis of which, the police case was instituted. (The fardbeyan was earlier proved by a formal witness P.W.-8 Madan Tewari, as Ext.-9). He recorded the re-statement of the informant. There were two injuries on the body of the informant. The informant was accompanied with Kongress Murmu. There were five injuries on the body of Kongress Murmu. He sent both of them to hospital for treatment. Thereafter, he had visited the place of occurrence, where he prepared the inquest report of the dead body of Bhola Murmu, which he has proved and was marked Ext.-11. He had inspected the place of occurrence, which was a paddy field, where he found lot of blood. He found the dead body of Bhola Murmu in the field of Daso Marandi, but the occurrence had taken place in the field of the Chhoto Murmu. He has stated that the crop in the field of Chhoto Murmu was still intact, whereas the entire paddy crop in the field of Daso Marandi had been harvested. He has stated that after the death of Kongress Murmu, he had prepared the inquest report of the dead body in the hospital, which also he has proved, and after completing the investigation, he submitted the charge-sheet in the case. In his cross-examination he has stated that he had recorded the statement of the informant at the Police Station. 13. The statements of the accused were recorded under Section 313 of the Cr.P.C., wherein they have denied the evidence against them. The defence has also brought on record the order passed in the proceeding under Section 145 of the Cr.P.C., between the parties, which was marked Ext.-A. 14. The orders passed in the proceeding under Section 144 of the Cr.P.C., converting the same into one under Section 145 of the Cr.P.C., and order passed by the Revisional Court, have also been proved by the prosecution, which were marked Exts. The orders passed in the proceeding under Section 144 of the Cr.P.C., converting the same into one under Section 145 of the Cr.P.C., and order passed by the Revisional Court, have also been proved by the prosecution, which were marked Exts. 6, 7 & 8 respectively, which also show that the proceeding under Section 145 of the Cr.P.C., was decided in favour of the accuseds' side and the revision filed against the said order was also dismissed. 15. Learned amicus curiae appearing for the appellants has 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, in as much as, admittedly the occurrence had taken place due to land dispute between the parties, and there is evidence on record to show that the proceeding under Section 145 of the Cr.P.C., had been decided in favour of the accused persons, showing that the accused persons were in cultivating possession of the land in dispute. It is submitted that though it is disputed by the informant’s side that the paddy was cultivated by the accused’s side, but the evidence of P.W.-5 Pradhan Murmu clearly shows that the paddy crop was cultivated by the accused persons and they were harvesting the crop. Even P.W.-3 Bharat Murmu and P.W.-4 Chandar Murmu have admitted that the proceeding under Section 145 of the Cr.P.C., was decided in favour of the accused persons, though the other witnesses have tried to deny the knowledge about the same. It is further submitted by learned amicus curiae that the evidences were recorded in the case after a lapse of more than 23 years and as such, it is not expected that the witnesses would recall the vivid details of the occurrence, as stated by them. Learned amicus curiae also submitted that so far as these appellants are concerned, there is allegation against them to have assaulted the deceased Bhola Murmu by sharp cutting weapons, but the evidence of P.W.-6 Dr. Bijay Kumar Bhagat and the post-mortem report proved by him as Ext.-1, would show that not a single incised wound was there on the dead body of the deceased. Bijay Kumar Bhagat and the post-mortem report proved by him as Ext.-1, would show that not a single incised wound was there on the dead body of the deceased. Learned amicus curiae further submitted that though the fardbeyan of the informant was given at the Police Station, as is also evident from the evidence of P.W.-9 Surya Narayan Modi, the I.O. of the case, but P.W.-7 Sugda Murmu had stated that he had given the fardbeyan at the place of occurrence itself. It is further submitted that not a single independent witness has supported the prosecution case, in spite of the fact that at the time of occurrence, harvesting was going on in the nearby fields, as is stated by the informant P.W.-7 Sugda Murmu, in his cross-examination, and he has also stated that no one had assembled at the place of occurrence, in spite of the noise during the occurrence. It is admitted by him that all the witnesses were only the family members, which shows that the prosecution case is supported only by the highly interested witnesses. Learned amicus curiae lastly, submitted that in any event, as the land in question was in cultivating possession of the accused persons and the paddy crop was also cultivated by them, and on the date of occurrence, being harvested by them, the accused’s side were the aggressors, and the offence, if any, shall come within the purview of Sections 304/149 of the Indian Penal Code, and not under Sections 302/149 of the Indian Penal Code, and both these appellants are in custody for more than 12 years, and have been sufficiently punished for the same. 16. Learned counsel for the State, on the other hand, has opposed the prayer, submitting that P.W.-3 Bharat Murmu, P.W.-4 Chandar Murmu, P.W.-5 Pradhan Murmu and P.W.-7 Sugda Murmu, the informant of the case, have fully supported the prosecution case as eyewitnesses to the occurrence, stating that the quarrel had taken place, in which, the accused persons had assaulted the informant’s side, in which, two persons died. Though the injuries on the injured could not be proved, but the prosecution had proved the death of two persons in the occurrence, beyond all reasonable doubts, and there is allegation against both these appellants to have assaulted one of the deceased Bhola Murmu. Though the injuries on the injured could not be proved, but the prosecution had proved the death of two persons in the occurrence, beyond all reasonable doubts, and there is allegation against both these appellants to have assaulted one of the deceased Bhola Murmu. Learned counsel submitted that the ocular evidences of the witnesses are fully corroborated by the medical evidence of P.W.-6 Dr. Vijay Kumar Bhagat, and the post-mortem report proved by him as Exts.-1 and 1/1, and 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 evidence on record, we find that sans the minor contradictions in the evidences and taking into consideration the fact that the proceeding under Section 145 of the Cr.P.C., between both the parties with respect to the land in question, was decided in favour of the accuseds' side, finding them to be in the cultivating possession of the land in dispute, and also in view of the admission of P.W.-5 Pradhan Murmu, that the paddy crop was cultivated by the accused persons and it was being harvested by them, the prosecution has proved beyond all doubts that the occurrence had taken place, due to the land dispute between the parties, and the informant’s side had objected the harvesting of the paddy crop by the accused persons. Though the witnesses have stated that as soon as they reached the place of occurrence, the assaults started upon the informant’s side, but the evidence of P.W.-3 Bharat Murmu clearly shows that prior to occurrence, there was altercation between the parties for about one hour, which resulted in the fight between both the sides, in which two persons had died. This shows that the informant’s side were the aggressors and the accused persons were in cultivating possession of the land in question. As such the accused persons had a right of private defence to protect their property, though it did not extend to the causing of death of two persons, in the facts of this case. Admittedly two persons died in the occurrence. As such the accused persons had a right of private defence to protect their property, though it did not extend to the causing of death of two persons, in the facts of this case. Admittedly two persons died in the occurrence. There is allegation against both the appellants to have assaulted the deceased Bhola Murmu by sharp cutting weapons, but no wound caused by sharp cutting weapon was found on the dead body of the deceased Bhola Murmu. Though incised wounds were found on the dead body of the other deceased Kongress Murmu, but the fact remains that there is no allegation upon these appellants to have assaulted the said deceased. As such, it is quite doubtful, whether these appellants were armed with any sharp cutting weapons. The fact however, remains that two persons were killed in the occurrence, due to fight between the parties for the land in dispute. 18. We are of the considered view that since it has come in the evidence on record that the accused were in cultivating possession of the land in dispute, the case of the appellants shall fall under Exception-2 of Section 300 of Indian Penal Code, which states that culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of private defence. This is a clear case, in which the accused persons had exceeded the right of their private defence to the property, and accordingly, the offence committed by them shall come under Section 304 Part-I of the Indian Penal Code and not under Section 302 of the Indian Penal Code. 19. Though the offence under Section 304 Part-I of the Indian Penal Code, is also punishable with imprisonment for life, but that is the maximum sentence prescribed by law for that offence. This offence is also punishable with imprisonment of either description, which may extend to ten years. 19. Though the offence under Section 304 Part-I of the Indian Penal Code, is also punishable with imprisonment for life, but that is the maximum sentence prescribed by law for that offence. This offence is also punishable with imprisonment of either description, which may extend to ten years. In the facts of this case and taking into consideration the fact that the evidence in the case started after more than 23 years of the occurrence, as also taking into consideration the fact that both these appellants are in custody for more than 12 years, from the date of impugned Judgment of conviction, we are of the considered view, that the interest of justice would be served, if the appellants are sentenced to the period of imprisonment already undergone by them for the said offence. 20. For the foregoing reasons, the impugned Judgment of conviction dated 28.06.2007, passed by learned Sessions Judge, Godda, in S.C. No. 275 of 1986, is modified to the extent that both these appellants Daso Marandi and Siro Murmu @ Shiru Tudu, are sentenced for the offence under Sections 304 Part-I/149 of the Indian Penal Code, instead of Section 302/149 of the Indian Penal Code. Consequently, the Order of sentence dated 6.07.2007, passed by the Trial Court below, is also modified and the sentence of R.I. for life with fine imposed upon both these appellants, is hereby, set-aside, and both appellants are sentenced to the period of imprisonment already undergone by them. Since both these appellants are in custody undergoing the sentence, they are directed to be released and set at liberty forthwith, if their detention is not required in any other case. 21. Before parting with this Judgment, we must record that we have been given able assistance by the learned amicus curiae, M/s. Renu Bala. We direct the Secretary, High Court Legal Services Committee, to make the payment of the prescribed remuneration to the learned amicus curiae. Let a copy of this Judgment be sent to the Secretary, High Court Legal Services Committee, Ranchi, for the needful. 22. This appeal is accordingly, dismissed, with modification in the Judgment of conviction and Order of sentence, as aforesaid. Let the Lower Court Record be sent back to the Court concerned forthwith, along with a copy of this Judgment.