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2019 DIGILAW 104 (JHR)

Jaidhan Murmu v. State Of Jharkhand

2019-01-10

APARESH KUMAR SINGH, KAILASH PRASAD DEO

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JUDGMENT Kailash Prasad Deo, J. - Heard learned counsel for the appellant Mr. Indu Shekhar Gupta and Learned counsel for the State Mr. Satish Kumar Keshri learned Additional Public Prosecutor. 2. The instant criminal appeal has been preferred against the judgment of conviction dated 25.03.2010 and order of sentence dated 26.03.2010 passed by 5th Additional Sessions Judge, FTC, Dumka in Sessions Case No. 131 of 2009 whereby the learned Trial Court has held the sole appellant Jaidhan Murmu guilty for the offence committed and punishable under Section 302 of the Indian Penal Code and awarded rigourous imprisonment for life. 3. The prosecution case as unfolded on the basis of fardbeyan of the Informant Jawaharlal Rai, P.W.1 recorded by Sub Inspector of Police Tulsi Prasad, Officer-In-charge, Tongra Police Station on 03.02.2009 at about 11.00 A.M. in village Tarani is that, the informant has stated that in the morning of 03.02.2009, he was going to the house of Dilip Rai for bringing the net to catch fish. As soon as he reached near the house of Jaidhan Murmu, he heard brawl. The informant has further stated that other villagers were also present there. They entered into the house of Jaidhan Murmu and saw Jaidhan Murmu son of Late Rameshwar Murmu was assaulting his wife indiscriminately by means of sword due to which, his wife fell on the grains and died. Jaidhan Murmu, after killing his wife has fled away. The occurrence was witnessed by Informant and other covillagers. The occurrence took place as there was some quarrel between the wife and the husband with regard to the running of shop in the morning. 4. On the basis of the fardbeyan of the Informant, Police has registered, Raneshwar (Tongra) P.S. case No. 10 of 2009 dated 03.02.2009 under Section 302 of the I.P.C against the accused Jaidhan Murmu. After completion of the investigation, Police has submitted charge-sheet against the sole accused Jaidhan Murmu vide Charge sheet No. 11 of 2009 dated 28.02.2009 under Section 302 of the I.P.C. Cognizance of the offence under Section 302 of the I.P.C. was taken against the accused and the case was committed to the Court of Sessions vide order dated 15.04.2009. The charge has been framed against the sole accused Jaidhan Murmu under Section 302 of the I.P.C vide order dated 15.05.2009 to which the accused has pleaded himself to be innocent. The charge has been framed against the sole accused Jaidhan Murmu under Section 302 of the I.P.C vide order dated 15.05.2009 to which the accused has pleaded himself to be innocent. Thus, he was put under trial. 5. In order to prove the prosecution case, the prosecution has examined altogether 12 prosecution witnesses and also exhibited number of documents up to Ext. 6. Jawaharlal Rai, Informant of the case has been examined as P.W.1; Nemulal Hembrom as P.W.2; Saboni Tudu as P.W.3; Savitri Devi as P.W.4; Satyanarayan Rai as P.W.5 is inquest witness; Baldev Tudu as P.W.6; Bibishan Murmu as P.W.7. These prosecution witnesses from P.W.2 to 4 and 6 to 7 have been declared hostile by the prosecution. Dilip Rai, covillager has been examined as P.W.8. Rasodi Murmu another co-villager has been examined as P.W.9, who has also been declared hostile by the prosecution. Ambika Prasad, Assistant Sub Inspector and Investigating Officer of the case has been examined as P.W.10. Dr. Ashok Kumar Gupta , who has conducted the autopsy of the dead body of the deceased has been examined as P.W.11. and Awadesh Kumar Singh, Sub Inspector of Police has been examined as P.W.12. 6. Signature of Jawaharlal Rai, Informant, on the fardbeyan has been proved and marked as Ext.1; the fardbeyan has been proved and marked as Ext.1/1; signature of the Informant on the seizure list has been proved and marked as Ext. 2; seizure list has been proved and marked as Ext.2/1; signature of Satyanarayan Rai on the inquest report has been marked as Ext. 3; signature of Baldev Tudu on the inquest report has been proved and marked as Ext. 3/1; inquest Report has been proved and marked as Ext. 3/2; formal FIR has been proved and marked as Ext.4; post mortem report has been proved and marked as Ext. 5 and injury report of the Informant has been proved and marked as Ext.6. 7. After closure of the prosecution evidence, accused Jaidhan Murmu has been examined under Section 313 Cr.P.C., 1973 on 20.03.2010 where he has claimed himself to be innocent but no defence witness or exhibits has been exhibited on behalf of the defence. 8. 5 and injury report of the Informant has been proved and marked as Ext.6. 7. After closure of the prosecution evidence, accused Jaidhan Murmu has been examined under Section 313 Cr.P.C., 1973 on 20.03.2010 where he has claimed himself to be innocent but no defence witness or exhibits has been exhibited on behalf of the defence. 8. After hearing the learned counsel for the parties on the basis of the materials available on record, learned Trial Court has passed the impugned judgment of conviction and order of sentence holding the appellant guilty under section 302 of the Indian Penal Code and awarded rigorous imprisonment for life. 9. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, appellant has preferred the present Jail appeal before this Court on 12.05.2010 which was admitted vide order dated 17.05.2010. Mr. Indu Shekhar Gupta has subsequently filed vakalatnama on behalf of the appellant. 10. Heard learned counsel for the appellant Mr. Indu Shekhar Gupta and Learned counsel for the State Mr. Satish Kumar Keshri, Additional Public Prosecutor. 11. Learned counsel for the appellant has submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot be sustained in the eyes of law. Learned counsel for the appellant has submitted that altogether twelve prosecution witnesses have been examined in this case, out of which, nine prosecution witness are co-villagers. P.W.10 Ambika Prasad is the Investigating Officer of the case. P.W. 11 Dr. Ashok Kumar Gupta is the Medical Officer. P.W.12 Awadesh Kumar Singh is Sub Inspector of Police. Except Jawaharlal Rai P.W. 1, informant of the case and P.W.5-Satya Narayan Rai who is inquest witness and P.W. 8 Dilip Rai, none of the co-villagers, who have been examined as P.W.s 2 to 4 and 6 to 7 and 9 have supported the prosecution case. Learned counsel for the appellant has further submitted that even the fardbeyan of the informant Jawaharlal Rai, and his evidence as P.W.1, are contradictory in nature. Learned counsel for the appellant has drawn attention of this Court, towards the fardbeyan which is the basis of the First Information Report, and nowhere, it is alleged that the accused has also assaulted the informant causing injury. The informant has categorically stated in his fardbeyan, that the accused has fled away. Learned counsel for the appellant has drawn attention of this Court, towards the fardbeyan which is the basis of the First Information Report, and nowhere, it is alleged that the accused has also assaulted the informant causing injury. The informant has categorically stated in his fardbeyan, that the accused has fled away. While deposing as P.W.1, the informant has claimed that he has also sustained injury while nabbing the accused as he went along with 8 to 10 persons, who were present there. Informant has proved his signature on the fardbeyan which has been marked as Ext.-1and his signature on seizure of the sword, has been proved and marked as Ext.-2. 12. Learned counsel for the appellant has submitted that there is vital contradiction with regard to the evidence of the informant as P.W.1,Jawaharlal Rai has stated in his fardbeyan, that the accused was not present in the house when he went inside the house but while deposing as PW-1, this witness has categorically stated that accused was present in the house and he has not seen any assault made in his presence, rather at paragraph-7 of his crossexamination, Informant has categorically stated that prior to him, 8-10 persons were present there. Learned counsel for the appellant has submitted that none of witness present there have supported the prosecution case. Learned counsel for the appellant has submitted that the accused was not apprehended at the place of occurrence, as it appears from the fardbeyan, where it has been stated that the accused has fled away. 13. Learned counsel for the appellant has further submitted that PW-8 Dilip Rai from whose house, the informant was going to bring the net for fishing, has stated that in the morning at 3 am, 4 persons came to his house and they have disclosed that Jaidhan Murmu has assaulted his wife and killed her. He saw sharp cutting penetrating wound on the breast of the lady by a knife. This witness has further stated that accused Jaidhan Murmu was holding the knife in his hand and was sitting and has confessed his guilt by saying that matter should not be forwarded as he has committed mistake. He saw sharp cutting penetrating wound on the breast of the lady by a knife. This witness has further stated that accused Jaidhan Murmu was holding the knife in his hand and was sitting and has confessed his guilt by saying that matter should not be forwarded as he has committed mistake. Learned counsel for the appellant has submitted that none of the prosecution witnesses even the Informant has not said so, as stated by P.W.8 Dilip Rai, as such there is vital contradiction in the evidence of P.W.1 and P.W.8 Dilip Rai. Learned counsel for the appellant has further submitted that P.W1 has seen injury on the head and breast of the lady by a knife but has not stated before the Police that he has seen the appellant Jaidhan Murmu, having knife in his hand. Learned counsel for the appellant has drawn the attention of this Court towards the statement made at para 5 of the cross examination of P.W.8, Dilip Rai, where he has categorically stated that Jaidhan Murmu was present in the house. Learned counsel for the appellant has further submitted that Informant P.W.1 has categorically stated that Jaidhan Murmu has fled away from the place of occurrence. Learned counsel for the appellant has drawn the attention of this Court towards the statement made by P.W.8 in para 4, wherein he has stated that the village comprised of Tribal and Bhuiyan communities and there are 15 houses of tribals. There were differences between the Tribal and Bhuiyan. Learned counsel for the appellant has submitted that because of such differences these 2 prosecution witnesses, i.e. P.W.1 and 8 who belongs to non-Tribal community have instituted a false case against the appellant who is of Tribal community. P.W.8 Dilip Rai is the father-in-law of ex-minister and as such false implication of the appellant cannot be ruled out in the present facts and circumstances of the case. 14. Learned counsel for the appellant has submitted that while recording the findings of guilt, learned Trial Court has wrongly appreciated the evidences. As per the prosecution case, there is no eye witness to the occurrence. The dead body was only found in the house of Jaidhan Murmu but the corresponding injury as propounded by the prosecution witnesses are not found by the doctor. Learned counsel for the appellant has submitted that P.W.11, Medical Officer Dr. As per the prosecution case, there is no eye witness to the occurrence. The dead body was only found in the house of Jaidhan Murmu but the corresponding injury as propounded by the prosecution witnesses are not found by the doctor. Learned counsel for the appellant has submitted that P.W.11, Medical Officer Dr. Ashok Kumar Gupta has found rigor mortis present in upper and lower limb. Skull bone fractured at right postero lateral side of skull at two places 2" x 1" x 1" deep both. Total skin of that area replaced and damaged about 3" long and 3" width at lateral and right side of the skull. The death was due to excess bleeding from the head and brain caused by blunt weapon. Time elapsed since death is about 3 hours. The Doctor has categorically stated that he has not found any sharp cut injury. Learned counsel for the appellant has drawn the attention of this Court that as per the prosecution case, entire case revolves around the allegation of assault made by the appellant upon his wife by means of sword or knife but the doctor has completely belied the prosecution case. Learned counsel for the appellant has submitted that witnesses can lie but circumstances will prove that the testimony of the witnesses are not worth credential to be accepted for recording guilt of a person. Learned counsel for the appellant has submitted that since the injury was found to be caused by hard and blunt substance, prosecution has miserably failed to prove the guilt against the accused. Learned counsel for the appellant has further submitted that Ext.6, the injury report of the informant, which is brought on record also shows that injury has been caused by means of hard and blunt substances which are simple in nature. Learned counsel for the appellant has further submitted that informant P.W.1, while recording his fardbeyan before the Police has not alleged that he has also been assaulted by the accused / appellant. In the aforesaid circumstances, learned counsel for the appellant has submitted that appellant deserves to be acquitted from the charge and conviction under Section 302 of the I.P.C by extending the benefit of doubt as prosecution has failed to prove the case beyond all reasonable doubt against accused / appellant Jaidhan Murmu. 15. Learned counsel for the respondent State Mr. In the aforesaid circumstances, learned counsel for the appellant has submitted that appellant deserves to be acquitted from the charge and conviction under Section 302 of the I.P.C by extending the benefit of doubt as prosecution has failed to prove the case beyond all reasonable doubt against accused / appellant Jaidhan Murmu. 15. Learned counsel for the respondent State Mr. Satish Kumar Keshri, Additional Public Prosecutor, submits that the impugned judgment of conviction and order of sentence has been passed by the learned Trial Court on the basis of materials available on record. Learned A.P.P. has further submitted that the deceased was found lying dead in her house which belongs to the appellant Jaidhan Murmu. Learned counsel for the State submits, that it is onus of the husband to explain how his wife had died. In the aforesaid background, prosecution witnesses have stated that they have reached the place of occurrence after hearing the brawl raised from the house. They saw this appellant having armed with sword assaulting his wife. Learned A.P.P. has further submitted that the learned Trial court has passed the impugned judgment of conviction and order of sentence on the basis of materials available on record, as the sword was also seized from the place of occurrence by the Investigating Officer, which has been marked as Ext. 2/1. Learned A.P.P. has thus, submitted that the impugned judgment of conviction and order of sentence does not warrant any interference by this Court. 16. Heard learned counsel for the appellant Mr. Indu Shekhar Gupta and learned Counsel for the State Mr. Satish Kumar Keshri , A.P.P.; perused the materials available on record including the F.I.R; framing of the charge; evidences of 12 prosecution witnesses; six prosecution exhibits; statement of the appellant recorded under section 313 of the Cr.P.C , 1973as well as the impugned judgment of conviction and order of sentence. This Court has minutely scrutinized the evidences of the prosecution witnesses. From perusal of the materials brought on record, it appears that P.W.2, P.W.3, P.W.4, P.W.6, P.W.7 and P.W.9 are hostile witnesses. They have not supported the case of the prosecution. The entire case revolves around the evidence of P.W.1 Jawaharlal Rai, informant of the case and P.W.8 Dilip Rai. From perusal of the evidence of the Informant as recorded in his fardbeyan and his deposition as P.W.1, there is vital contradiction in the prosecution case. They have not supported the case of the prosecution. The entire case revolves around the evidence of P.W.1 Jawaharlal Rai, informant of the case and P.W.8 Dilip Rai. From perusal of the evidence of the Informant as recorded in his fardbeyan and his deposition as P.W.1, there is vital contradiction in the prosecution case. The informant has claimed in the fardbeyan that he went inside the house, where he saw the accused assaulting his wife and subsequently fled away. While examining as P.W.1 this witness has categorically stated that he has not seen the occurrence as 8-10 persons were already there when he arrived there. He saw the accused sitting with a knife and also sustained injury on his right side of head and cheek. These facts have not been disclosed by the Informant in his fardbeyan recorded by the police officer. The evidence of P.W.8 Dilip Rai is also not in consonance with the fardbeyan of the informant as well as evidence of P.W.1 Jawaharlal Rai. P.W.8 Dilip Rai has categorically stated that he was called by 4 persons, 2 males and 2 females from the house and reached to the house of the appellant, where he saw the dead body of the wife of the appellant Jaidhan Murmu. The appellant was sitting holding a knife outside the house and was accepting his guilt, that he has committed the offence and requested not to forward the same. But these statements have not been supported by any of the prosecution witnesses including the informant P.W.1. 17. Under the aforesaid facts and circumstances, this Court is of the opinion that there are vital major contradiction in the evidence of the Informant as made out in the fardbeyan as well as his evidence as P.W.1 Jawaharlal Rai and evidence of P.W.8 Dilip Rai. This Court has also taken judicial notice with regard to the injury caused upon the victim. It appears from Ext.5-Post Mortem report that injuries are caused by hard and blunt substance and the Doctor has categorically stated so during his examination as P.W.11. He has not found any sharp cutting injury on the person of the deceased. This court is of the view that prosecution has miserably failed to prove the guilt against the appellant. It appears from Ext.5-Post Mortem report that injuries are caused by hard and blunt substance and the Doctor has categorically stated so during his examination as P.W.11. He has not found any sharp cutting injury on the person of the deceased. This court is of the view that prosecution has miserably failed to prove the guilt against the appellant. The appellant is entitled for benefit of doubt as none of the prosecution witnesses are eye witnesses to the occurrence and both the prosecution witnesses such as P.W.1 Jawaharlal Rai and P.W.8 Dilip Rai are contradictory to each other on material evidence. 18. Under the aforesaid facts and circumstances, we are of the considered view that the prosecution has failed to prove the charge beyond all reasonable doubts against the appellant Jaidhan Murmu. Accordingly, the appellant is entitled for benefit of doubt. The impugned judgment of conviction dated 25.03.2010 and order of sentence dated 26.03.2010 passed in Sessions Case No. 131 of 2009 by the 5th Additional Sessions Judge, FTC, Dumka is hereby set aside. 19. That the Appellant is in jail, let the appellant be released forthwith from custody, if not wanted in connection with any other case. 20. In the result, the appeal is allowed. Let the Lower Court Records be sent to the Court below forthwith.