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2018 DIGILAW 289 (JHR)

Kala Hembrom v. State of Jharkhand

2018-02-03

B.B.MANGALMURTI, H.C.MISHRA

body2018
JUDGMENT : H.C. Mishra, J. Heard learned amicus curiae, appointed by the Court for the appellant and learned counsel for the State. 2. The appellant is aggrieved by the Judgment of conviction dated 15th February 2006 and Order of sentence dated 17th February 2006, passed by the learned Additional Sessions Judge, FTC-II, Saraikella, in S.T. No. 284 of 1998, whereby, out of the three co-accused persons, who were facing the trial, only the appellant has been convicted for the offence under Section 302 of the Indian Penal Code. The other two co-accused persons were acquitted of the charge. Upon hearing on the point of sentence, the appellant has been sentenced to undergo R.I. for life and a fine of Rs.2,000/- for the said offence. 3. The prosecution case was instituted on the basis of the fardbeyan of Gulab Singh Munda, the son of the deceased Pogro Munda, recorded on 1.5.1998 at 2.00 AM in the night, in his village Barjudih, P.S. Karshawan, in the then District West Singhbhum. In the fardbeyan, it is stated by informant that on 30.4.1998 at about 9.00 PM in the night, he was returning back along with his father Pogro Munda, uncle Sura Munda, Parvati Mundain, Kairi Kui, from village Gangodih to his village Barjudih on foot. They were going in one line and the informant was the last person in the line and his father Pogro Munda was ahead of him. When they were in the midway of village Gongodih and Barjudih, suddenly the accused Kala Hembram, who is his co-villager, came with a big knife in his hand and assaulted his father twice by knife on his chest. His father died at the spot. Thereafter, they brought the dead body to their house. It is stated that the occurrence had taken place due to previous enmity because of land dispute between them, for which there was a case, in which the accused side was defeated. On the basis of the fardbeyan of the informant, Kharsawan P.S. Case No.19 of 1998, corresponding to G.R. No.268 of 1998 was instituted for the offence under Section 302 of the Indian Penal Code, against the named accused Kala Hembrom, and investigation was taken up. After investigation, the police submitted the charge-sheet against the appellant and two more persons, who were also facing the trial, and were acquitted after trial. 4. After investigation, the police submitted the charge-sheet against the appellant and two more persons, who were also facing the trial, and were acquitted after trial. 4. After commitment of the case to the Court of Session, the charge was framed against all the three accused persons for the offence under Sections 302 / 34 of the Indian Penal Code, and upon the accuseds' pleading not guilty and claiming to be tried, they were put to trial. 5. In course of trial, nine witnesses have been 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. Out of the witnesses examined by the prosecution, PW-1 Kairi Kurli, who according to the FIR was along with the informant and the deceased at the time of occurrence, PW-2 Gomia Kurli and PW-8 Sura Munda, another son of the deceased, have turned hostile and have not supported the prosecution case, though they have stated that the deceased was murdered, and PW-4 Joka Munda was only tendered by the prosecution. 6. PW-3 Gulab Singh Munda is the informant and the son of the deceased. He is also the eyewitness to the occurrence. This witness has stated that the occurrence had taken place on 30.4.1998. He had gone to Karsawan Hat and he, along with his father and other persons, were returning from the Hat. When they reached between the villages Gangodih and Poneda, it was about 6.00 PM in the evening. He has stated that Kala Hembrom came armed with a knife and assaulted his father with the knife, due to which, his father died at the spot and the accused fled away. Thereafter, they brought the dead body to his house. This witness has stated that on the next day, he lodged the case in the Police Station. His statement was recorded, upon which, he put his signature. He has identified his signature on the fardbeyan, which was marked Ext.-1. The police had also prepared the inquest report of the dead body, on which also, he had put his signature, which on his identification was marked Ext.-1/1. He has identified the accused in the Court. In his cross-examination, this witness has stated that they had gone to Hat at about 10.00 AM in the morning. The police had also prepared the inquest report of the dead body, on which also, he had put his signature, which on his identification was marked Ext.-1/1. He has identified the accused in the Court. In his cross-examination, this witness has stated that they had gone to Hat at about 10.00 AM in the morning. He was returning on the cycle, but his father, uncle and other persons were returning on foot and they had started earlier. From Gangodih, all of them were going together and he was also on his foot, towing the cycle with him. He has stated that the occurrence had taken place about 6.00 PM. He has denied the suggestion to have given the statement before the police that the occurrence had taken place at 9.00 PM. This witness has stated that the police was informed by the father of the accused and when the police reached the place of occurrence, the father of the accused was also accompanying the police. He has again stated in his cross-examination that he was called at the Police Station in the morning, where he gave his statement and his signature was taken on a blank paper. He has stated that when he was putting his signature, nothing was written on the paper and the police told him that his statement would be written later. Nothing was written in his presence. He has also stated in his cross-examination that there was no enmity due to any land dispute with the accused, and he has denied the suggestion to have given false evidence. 7. PW-5 is Sura Munda. This witness has supported the prosecution case stating that on the date of occurrence, they had gone to Karsawan Hat and they were returning together. It was getting evening, and when they crossed Gangodih, the accused Kala Hembrom came and assaulted Pogro in his stomach by knife. Pogro died at the spot. Thereafter, Kala fled away. In his cross-examination, this witness has stated that they had left the Hat at about 4.00 PM and it was getting dark while they reached Gangodih. He has stated that from the place of occurrence, village Punida is at a distance of one kilometer and this village is situated between Barjudih and Gangodih. He has stated that he had not seen the deceased being assaulted, but he had seen the deceased fallen down. He has stated that from the place of occurrence, village Punida is at a distance of one kilometer and this village is situated between Barjudih and Gangodih. He has stated that he had not seen the deceased being assaulted, but he had seen the deceased fallen down. This witness has also stated that the father of the accused had asked them to inform the police and it was the father of the accused, who had informed the police. He has also denied the suggestion to have given the false evidence. 8. PW-6 is Parvati, who has also stated that on the date of occurrence, they were returning from Hat. When they reached near Gangodih village, it was evening and suddenly Kala came there with a knife, assaulted Pogro in his stomach and fled away. Pogro died at the spot, who was brought to his house. In the night, the police had arrived in the village. She has identified the accused in the Court. In her cross-examination, this witness has stated that they had left the Hat at about 3.00 PM. Village Gangodih is at a distance of about 3 to 4 KM and when they reached Gangodih, it was getting dark. The place of occurrence is at a distance of about 100 yards from Gangodih village and it is also near Punida village. The occurrence had taken place by the side of the road. This witness has also stated that Kala was also going along with them. He was going ahead of all, and suddenly he assaulted the deceased and fled away. 9. PW-9 is Dr. Radhika Kumari Sinha, who had conducted the post-mortem examination on the dead body of the deceased on 1.5.1998 and had found the following ante-mortem injuries on his person:- 1. Sharp cutting injury 2½” x ½” x 8” on the right hypochondrium 2” away from the mid line directed upwards cutting through left lobe of liver, diaphram and interior lobe of right lung. 2. Sharp cutting injury 1”x ½” x 6” deep upon left flank just below the rib cage directed forward and downward cutting through spleen. 3. Spleen punctured, lungs pale with blood in plural cavity, right lung interior lobe punctured. She has stated that the death was caused due to shock and hemorrhage and all the injuries were ante-mortem in nature caused by sharp cutting weapon, may be, by chhura. 3. Spleen punctured, lungs pale with blood in plural cavity, right lung interior lobe punctured. She has stated that the death was caused due to shock and hemorrhage and all the injuries were ante-mortem in nature caused by sharp cutting weapon, may be, by chhura. She has identified the post-mortem report to be in her pen and signature, which was marked Ext.-6. 10. PW-7 is Raj Nandan Ram, who is the I.O. in the case. This witness has stated that on 1.5.1998 he was posted as Officer-Incharge at Karsawan Police Station. At about 1.00 PM in the night, he was informed that someone was murdered. He made the Sanha entry about the information and proceeded to village Barjudih, where he found the dead body of the deceased Pogro Munda at his house. He recorded the fardbeyan of Gulab Singh Munda, which was read over to him, and he put his signature and one witness also put his signature on it. He has identified the fardbeyan to be in his pen and signature, which was marked Ext.-2. Thereafter, he went to the place of occurrence, which is situated between village Gangodih and Barjudih near village Punida. He found a lot of blood on the village road. He has stated that he seized the blood stained soil and prepared the seizure list, which he has proved and the same was marked Ext.-3. He recorded the statements of the witnesses at village Barjudih and prepared inquest report of the dead body, which also he has proved and the same was marked Ext.-4. Thereafter, he came to the Police Station and recorded the F.I.R. He has also proved the formal F.I.R., which was marked Ext.-5. He has stated that he again visited the village Barjudih and raided the house of the accused persons, but they were found absconding. He received the post-mortem report. The accused persons had surrendered in the Court and he had taken them on police remand and had taken their statements, in which, they had pleaded innocence. He had submitted the charge-sheet in this case. In his cross-examination, this witness has stated that he had reached the place of occurrence in the night and had inspected the place of occurrence in the light of torch and lantern. The informant had also accompanied him. He had submitted the charge-sheet in this case. In his cross-examination, this witness has stated that he had reached the place of occurrence in the night and had inspected the place of occurrence in the light of torch and lantern. The informant had also accompanied him. He has stated that implication of the other co-accused persons came in the light in the statement of Joka Munda. The case was instituted on 1.5.1998 and the statement of Joka Munda was recorded on 14.5.1998. He has also stated that in the supervision note of the SDPO, it is stated that the assault was made by firearm. 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 defence evidence was adduced in the case. On the basis of the evidence on record, the accused Kala Hembrom was convicted and sentenced for the offence under Section 302 of the Indian Penal Code, whereas the other two co-accused persons, facing the trial, were acquitted, as there were no evidence against them. 12. Learned amicus curiae arguing for the appellant 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, as the entire prosecution case is absolutely doubtful. It is submitted by learned amicus curiae that three witnesses have turned hostile in the case and one of them was the son of the deceased. It is also submitted by learned amicus curiae that though the witnesses including the informant, P.W.-3 Gulab Singh Munda have stated that on the date of occurrence, they had gone to Kharsawan Hat and they were returning from the Hat, when the occurrence had taken place, but this fact is not stated in the fardbeyan, rather in the fardbeyan, the informant has stated that they were returning from village Gangodih. It is also submitted by learned amicus curiae that though the fardbeyan is shown to be recorded at 2.00 AM in the night, and the I.O. has also stated that he had visited the place of occurrence in the night itself, but the informant P.W.-3 Gulab Singh Munda has clearly stated in his evidence that he had gone to the Police Station and lodged the case on the next day. In his cross-examination also he has stated that he was called to the Police Station by the police in the morning when his signature was obtained on a plain paper. He has specifically stated that the paper was blank and nothing was written on that and he was told by police that his statement would be recorded later, on the said paper. It is further submitted by learned amicus curiae that even though in the fardbeyan, the time of occurrence is said to be 9.00 P.M., in the night, but all the witnesses, who have supported the prosecution case, have stated that they had left the Kharsawan Hat at about 3-4 PM, and the time of occurrence was about 6.00 PM, when it was getting dark. Learned counsel, accordingly, submitted that these are material contradictions in the evidence on record and in the facts of the case, the appellant is entitled to the benefits of doubt. 13. Learned counsel for the State, on the other hand, has opposed the prayer and submitted that P.W.-3 Gulab Singh Munda, P.W.-5 Sura Munda and P.W.-6 Parvati are the eyewitnesses to the occurrence and they have fully supported the prosecution case, stating that the appellant Kala Hembrom had assaulted the deceased by knife, causing his death at the spot. The oral evidence of these witnesses is fully supported by the medical evidence of P.W.-9 Dr. Radhika Kumari Sinha, and the post-mortem report proved by her as Ext.-6, which shows that there were incised wounds on the dead body of the deceased, caused by knife. Learned counsel, accordingly, submitted that though there may be some contradictions on the point of time of occurrence, which is only normal, due to the fact that the witnesses are the villagers, and these slight contradictions are fit to be ignored. Learned counsel has further submitted that in the facts of this case, the prosecution has been able to bring home the charge against the appellant 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 evidence on record, we find that the evidence of P.W.-3 Gulab Singh Munda, who is informant and son of the deceased, itself makes the entire prosecution case absolutely doubtful. 14. Having heard learned counsels for both the sides and upon going through the evidence on record, we find that the evidence of P.W.-3 Gulab Singh Munda, who is informant and son of the deceased, itself makes the entire prosecution case absolutely doubtful. According to his fardbeyan, the occurrence had taken place in the dead night at about 9.00 PM and the fardbeyan was also recorded at 2.00 AM in the night, in which, the informant had stated that at the time of occurrence, they were returning from Village Gangodih to their village Barjudih. But all the material witnesses, who have supported the prosecution case, including the informant, P.W.-3 Gulab Singh Munda, have stated that on the date of occurrence, they were returning from Kharsawan Hat at about 3-4 PM and at the time of occurrence, it was only evening, getting dark. The time of occurrence given by the informant, in his evidence, is about 6.00 PM in the evening, and in his cross-examination he has denied the suggestion to have given the statement before the police that the occurrence had taken place at 9.00 PM in the night. The informant in his examination-in-chief has stated that he went to the Police Station the next day for lodging the case. In his cross-examination he has further clarified that he was called in the Police Station on the next morning, his statement was taken, and his signature was obtained on a plain paper, on which, nothing was written and he was informed by the police that his statement would be written later, on that paper. This statement of the informant is also corroborated by the fact that the FIR was sent to the Court concerned on 2.5.1998, as is apparent from the FIR marked Ext.-5. Even the date and time of receiving the information at the Police Station, as mentioned in the FIR, is 1.5.1998 at 7.30 AM. Had the FIR been recorded in the early hours of 1.5.1998, as claimed by the I.O., there was no valid reason for sending the same to the Court on 2.5.1998, rather it would have been sent on 1.5.1998 itself. The fact also remains that the witnesses, who have supported the prosecution case, including the informant, have admitted that the police was informed by none-else than the father of the accused, which also makes the prosecution case absolutely doubtful. The fact also remains that the witnesses, who have supported the prosecution case, including the informant, have admitted that the police was informed by none-else than the father of the accused, which also makes the prosecution case absolutely doubtful. These apart, even though motive is imputed in the fardbeyan by the informant, stating that the occurrence had taken place due to previous enmity because of land dispute between them, but in his evidence the informant has not stated about any such motive for committing the offence, and in his cross-examination, he has admitted that there was no enmity between them due to any land dispute. We also find from the record that none of the witnesses have stated anything against the other two co-accused, who had faced the trial and there is nothing on record to show as to why those two accused persons were made accused in the case. The I.O. has stated that their implication came on the basis of the statement of Joka Munda, but Joka Munda has only been tendered by the prosecution and he has stated nothing. In view of these facts, we are of the considered view that even though the witnesses have supported the prosecution case, but there are material contradictions in the FIR and evidence of the witnesses, and the prosecution has not been able to bring home the charge against the accused appellant beyond all reasonable doubts, and the accused was entitled to the benefits of doubt. As such, the impugned Judgment of conviction and Order of sentence cannot be sustained in the eyes of law. 15. For the foregoing reasons, the impugned Judgment of conviction dated 15th February 2006 and Order of sentence dated 17th February 2006, passed by the learned Additional Sessions Judge, FTC-II, Saraikella, in S.T. No. 284 of 1998, whereby the appellant Kala Hembrom has been found guilty, convicted and sentenced for the offence under Section 302 of the Indian Penal Code, are hereby, set-aside. The appellant Kala Hembrom is given the benefits of doubt and he is acquitted of the charge. The appellant is in custody, undergoing the sentence. Let him be released and set at liberty forthwith, if his detention is not required in any other case. 16. Before parting with this Judgment, we must record that we have been given able assistance by the learned amicus curiae, Mr. The appellant is in custody, undergoing the sentence. Let him be released and set at liberty forthwith, if his detention is not required in any other case. 16. Before parting with this Judgment, we must record that we have been given able assistance by the learned amicus curiae, Mr. Tarun Kumar, and 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, for the needful. 17. In the result, this appeal is allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.