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2019 DIGILAW 121 (JHR)

Lakhan Murmu v. State Of Jharkhand

2019-01-14

APARESH KUMAR SINGH, KAILASH PRASAD DEO

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JUDGMENT Kailash Prasad Deo, J. - Heard Mr. Ashish Verma, learned Amicus Curiae and learned counsel for the State Mr. Gauri Shankar Prasad, learned Additional Public Prosecutor. 2. The instant criminal appeal has been preferred against the judgment of conviction dated 30.07.2010 and order of sentence dated 02.08.2010 passed by the learned Sessions Judge, Godda in Sessions Case No. 85 of 2010 whereby the learned Trial Court has held the sole appellant Lakhan Murmu guilty for the offence committed and punishable under Section 302 of the Indian Penal Code and awarded rigorous imprisonment for life and a fine of Rs. 5,000/- and in default in payment thereof, to undergo further simple imprisonment for one month. However, learned Trial Court has acquitted the appellant of the charge under section 201 of the Indian Penal Code. 3. Prosecution case is based upon the fardbeyan of Thomas Soren (PW-7), the informant, recorded by the Sub Inspector of Police Baleshwar Oraon (PW3) at Siramgudda Nali on 30.11.2009 at 9.45 AM. The informant has stated that at about 4.00 AM in the morning while he was in his house, he woke up on the brawl and went along with Daniel Soren (PW-4), Babudhan Soren (PW8) and Karan Soren (PW-6) towards Siramgudda Nali where he saw the dead body of his youngest sister Mary Soren aged about 23 years lying on the ground in Jungle. Informant has further alleged that his brother in law Lakhan Murmu, accused / appellant after chopping the neck of his sister, fled away. The informant has further stated that they have tried to caught hold of him, but he has fled away. Informant has further stated that his sister''s marriage with Lakhan Murmu was solemnized two years ago as per Santhli rites and customs. Informant has further stated that his sister was working as Sevika in Anganwari Centre. There was some quarrel in the family. Informant has alleged that he has informed the police, on the basis of which, police came and fardbeyan was recorded. 4. On the basis of fardbeyan of the Informant, Police has registered Sunder Pahari P.S. case No. 48 of 2009 dated 30.11.2009 under Sections 302 and 201 of the Indian Penal Code against the accused Lakhan Murmu. Informant has alleged that he has informed the police, on the basis of which, police came and fardbeyan was recorded. 4. On the basis of fardbeyan of the Informant, Police has registered Sunder Pahari P.S. case No. 48 of 2009 dated 30.11.2009 under Sections 302 and 201 of the Indian Penal Code against the accused Lakhan Murmu. After completion of the investigation, Police has submitted charge-sheet against the sole accused Lakhan Murmu vide Charge Sheet No. 05 of 2010 dated 28.02.2010 under Sections 302 / 201 of the Indian Penal Code. Cognizance of the offence under Sections 302 and 201 of the Indian Penal Code was taken against the accused vide order dated 09.03.2010 and the case was committed to the Court of Sessions vide order dated 22.03.2010. The charge has been framed against the sole accused Lakhan Murmu under Sections 302 and 201 of the Indian Penal Code vide order dated 05.04.2010 to which the appellant 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 eight prosecution witnesses and adduced five prosecution exhibits. Dr. Dilip Kumar Choudhary one of the member of the Medical Board and Dr. Usha Singh, another member of the Medical Board, have conducted postmortem on the dead body of the deceased, have been examined as PW-1 and PW-2 respectively. Baleshwar Oraon, Sub Inspector of Police, has recorded the fardbeyan of the informant and investigating Officer of the case has been examined as PW-3. Daniel Soren has been examined as PW-4, Santosh Soren has been examined as P.W-5 and Karan Soren has been examined as PW-6. Thomas Soren, informant and brother of the deceased, has been examined as PW-7. Babudhan Soren has been examined as PW-8. Postmortem Report has been proved and marked as Ext.1; Seizure List has been proved and marked as Ext.2; Signature of PW-8 Babudhan Soren on the seizure list has been proved and marked as Ext.-2/1; Fardbeyan has been proved and marked as Ext.3; Endorsement of case registration opn the Fardbeyan has been proved and marked as Ext.-3/1; Formal FIR has been proved and marked as Ext.-4; Case Diary from paragraphs 1 to 54 has been proved and marked as Ext.5 (wrongly exhibited). 6. 6. After closure of the prosecution evidence, accused Lakhan Murmu has been examined under Section 313 Cr.P.C. on 25.06.2010 where he has claimed himself to be innocent. 7. After hearing the learned counsel for the parties and 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 accused guilty under section 302 of the Indian Penal Code and awarded rigorous imprisonment for life and also a fine of Rs 5,000/-. In case of default in payment of fine, accused has to undergo further simple imprisonment for one month. Though by the impugned judgment, learned Trial court has acquitted the accused of the charges under section 201 of the Indian Penal Code. 8. 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 31.08.2010 which was admitted vide order dated 06.09.2010 and is being listed for final hearing before this Bench. 9. Heard learned Amicus Curiae Mr. Ashish Verma and learned counsel for the State Mr. Gauri Shankar Prasad, Additional Public Prosecutor. 10. Learned Amicus Curiae Mr. Ashish Verma has submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned Amicus Curiae has submitted that on perusal of the First Information Report which has been marked as Ext. 4, it appears that the informant is also not an eyewitness to the occurrence. Learned Amicus Curiae has further submitted that in this case, it appears that there is no eyewitness to the occurrence. As per the First Information Report, after death of the deceased Mary Soren, the informant along with PW-4 Daniel Soren, PW-6 Karan Soren and PW-8 Babudhan Soren have reached the place of occurrence, where they saw the dead body of the deceased. The informant being the brother of the deceased has lodged the FIR. Learned Amicus Curiae has submitted that though the prosecution has alleged that the Tangi which has been used in the commission of the murder has been seized by the police but there was no mark of blood on the Tangi as the same has been washed and wiped by the accused. But the said Tangi has not been produced before the court. But the said Tangi has not been produced before the court. Learned Amicus Curiae has further submitted that the place of occurrence was at a distance of 1/2 - 1 km from the house of the accused appellant. Learned Amicus Curiae has submitted that learned Trial Court has convicted the appellant regarding commission of murder of his wife only on the ground of being husband of the deceased as alleged by the informant. Learned Amicus Curiae has further submitted that had the husband had any intention to kill his wife, he could have killed her in the house itself, whereas the place of occurrence is situated at a distance of 1/2 - 1 km away from the house of the accused / appellant. Learned Amicus Curiae has submitted that the doctor (PW-1) has categorically stated that postmortem was conducted within 36 hours from the time of death. As per the prosecution case, death occurred at around 4.00 AM on 30.11.2009 whereas the postmortem has been conducted by the Medical Board comprising of PW-1 Dr. Dilip Kumar Choudhary and PW-2 Dr. Usha Singh in the noon of 30.11.2009, but the doctor has categorically stated that the death occurred within 36 hours of the occurrence. Learned Amicus Curiae has drawn attention of this court to the postmortem report which has been marked as Ext.-1 which suggest that rigors mortis was present. Learned Amicus Curiae has submitted that in the month of winter (November), rigor mortis will appear after 24 hours of the occurrence on the dead body. Thus, it appears that the death of deceased occurred prior to 30.11.2009 and as such, the prosecution case seems to be doubtful. Learned Amicus Curiae has further submitted that the Investigating Officer who has recorded the Fardbeyan of the informant, has investigated into the matter, but has failed to prove the place of occurrence. As such, there was no fair investigation by the police. As such, the impugned judgment of conviction of the appellant is not sustainable in the eyes of law. Learned Amicus Curiae has further submitted that no prosecution witness has claimed that he has seen the occurrence, rather as per the Fardbeyan, four persons including the informant, Daniel Soren, Santosh Soren, Karan Soren and Babudhan Soren who have reached the place of occurrence after hearing brawl and saw Mary Soren lying on the ground. Learned Amicus Curiae has further submitted that no prosecution witness has claimed that he has seen the occurrence, rather as per the Fardbeyan, four persons including the informant, Daniel Soren, Santosh Soren, Karan Soren and Babudhan Soren who have reached the place of occurrence after hearing brawl and saw Mary Soren lying on the ground. None of the witnesses have claimed that he had seen the occurrence from his naked eyes, nor they have given exact description regarding manner of the occurrence. Learned Amicus Curiae has further submitted that since FIR has been filed against the appellant, learned Trial Court has convicted the appellant only on the ground that he is the husband of the deceased and that the informant and other witnesses have stated that they have seen the accused fleeing away. Learned Amicus Curiae has thus submitted that on the basis of the surmises and conjectures, conviction of the accused / appellant has been passed by learned Trial Court, which cannot sustain in the eyes of law. Learned Amicus Curiae has further submitted that the informant who has been examined as PW-7 and other witnesses such as PWs-3, 4, 5, and 6 have given description of their arrival at the place of occurrence which is contradictory to each other. As such, appellant cannot be convicted on the basis of such evidence brought by the prosecution in absence of any eyewitness to the occurrence. Learned Amicus Curiae has thus submitted that the appellant may be acquitted of the charge and conviction under section 302 of the Indian Penal Code by extending benefit of doubt as the place of occurrence and the weapon used for assault has not been proved by the prosecution, there is no eyewitness to the occurrence and all prosecution witnesses have given contradictory evidence. 11. Learned counsel for the State Mr. Gauri Shankar Prasad, Additional Public Prosecutor has submitted 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 counsel for the State has submitted that though, there is no eyewitness to the occurrence, but soon after the occurrence, informant and three persons namely Daniel Soren, Karan Soren and Babudhan Soren (PWs-4, 6 and 8) have reached the place of occurrence and they have seen the accused fleeing away. Learned counsel for the State has submitted that though, there is no eyewitness to the occurrence, but soon after the occurrence, informant and three persons namely Daniel Soren, Karan Soren and Babudhan Soren (PWs-4, 6 and 8) have reached the place of occurrence and they have seen the accused fleeing away. Learned counsel for the State has further submitted that the appellant being the husband has dispute with his wife and has killed his wife. As such, learned Trial Court has rightly convicted the appellant for the charge under section 302 of the Indian Penal Code. Thus, the impugned judgment of conviction and order of sentence does not warrant any interference by this Court. 12. Heard learned Amicus Curiae Mr. Ashish Verma and learned Counsel for the State Mr. Gauri Shankar Prasad, Additional Public Prosecutor. Perused the materials available on record including the First Information Report, framing of the charge, evidences of eight prosecution witnesses, five prosecution exhibits, statement of the accused / appellant under Section 313 of the Cr.P.C as 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 none of the prosecution witnesses have claimed themselves to be the eyewitness to the occurrence. As per the prosecution case, on brawl the informant and other persons reached the place of occurrence and saw the body of Mary Soren lying on the ground. Three injuries were found on the person of the deceased Mary Soren. Two have been attributed to sharp cutting weapon and one has been attributed to hard blunt object. None of the witnesses named in the FIR i.e. PWs-4, 6 and 8 and the informant Thomas Soren (PW-7) have described the manner of occurrence to establish themselves as eyewitness to the occurrence. In absence of any vivid description given by any of these prosecution witnesses, rather in view of contradictory evidences, this court is of the opinion that these witnesses are not the eyewitnesses to the occurrence, rather they have reached the place of occurrence after the crime. Since the accused / appellant Lakhan Murmu is the husband of the deceased, he has been made accused with allegation that there was some family dispute between the parties as the wife was working as Anganwari Sevika and the husband was working as manual labour. Since the accused / appellant Lakhan Murmu is the husband of the deceased, he has been made accused with allegation that there was some family dispute between the parties as the wife was working as Anganwari Sevika and the husband was working as manual labour. This court has taken judicial notice of the fact that four prosecution witnesses namely, Daniel Soren, Karan Soren, Babudhan Soren and the informant Thomas Soren have not reached the place of occurrence together, as per their evidences, on the brawl raised at 4.00 AM in the morning on 30.11.2009. In such circumstances, there is contradiction in the evidence of the prosecution case. The occurrence has not been seen by any person and this accused was only implicated for being husband of the deceased. This court has considered this aspect of the matter that there is dispute with regard to the place of occurrence from the village, some persons claimed it to be 1/2 km, while others claim it to be 1 km. As per the statement of the prosecution witnesses, allegation for commission of murder has been levelled against the husband. Had the husband got any intention to kill his wife, there was no reason to kill her at around 4.00 AM in the morning at a distance of 1/2 - 1 km from the house. This court has taken judicial notice of the fact that in the month of winter, rigor mortis appear only after 24 hours of the death. Prosecution has alleged the time of occurrence at 4.00 am in the morning on 30.11.2009 and the postmortem was conducted on the same day but the doctor has found presence of rigor mortis which suggest that the death had not occurred on 30.11.2009, rather it was prior to 30.11.2009. Under the aforesaid circumstances, this court is of the opinion that there is no eyewitness to the occurrence, nor they have proved the manner of occurrence. The weapon used for assault was not brought before the Trial Court and rigor mortis has been found on the dead body of the deceased which occur only after 24 hours of the occurrence in the month of winter, coupled with the fact that section 106 of the Indian Evidence Act will not come into play as the dead body was not found in the house of the accused / appellant, husband of the deceased. In the aforesaid facts and circumstances, we are of the considered view that the prosecution has not been able to prove its case beyond all shadow of reasonable doubts against the appellant. 13. 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 accused / appellant Lakhan Murmu. Accordingly, the appellant is entitled for benefit of doubt. The impugned judgment of conviction dated 30.07.2010 and order of sentence dated 02.08.2010 passed in Sessions Case No. 85 of 2010 by the Sessions Judge, Godda is hereby set aside. Appellant is in jail. Let the appellant be released forthwith from custody, if not wanted in connection with any other case. 14. In the result, the appeal is allowed. Let the Lower Court Records be sent to the Court below forthwith.