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2019 DIGILAW 998 (JHR)

Chandra Hembram v. State Of Jharkhand

2019-05-07

DEEPAK ROSHAN, SHREE CHANDRASHEKHAR

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JUDGMENT Shree Chandrashekhar, J. - Criminal Appeal No. 332 of 1993 has been filed by the accused namely, Chandra Hembram and the accused Fagu Tudu and Criminal Appeal No. 338 of 1993 has been filed by the accused persons namely, Babu Ram Marandi, Dhane Hembram, Rusi Lal Murmu and Gida Hembram. 2. Both the criminal appeals have been filed challenging the judgment of conviction dated 25.05.1993 under section 302, 449, 323 and 451 IPC and the order of sentence dated 26.05.1993 in Sessions Case No. 505 of 1990 passed by the 6th Additional Sessions Judge, Dumka (SP). 3. During pendency of Criminal Appeal No. 332 of 1993 the appellant namely, Fagu Tudu has died and the appellants namely, Dhane Hembram and Gida Hembram in Criminal Appeal No. 338 of 1993 have also died during pendency of the appeal. Accordingly, Cr. Appeal No. 332 of 1993 qua appellant no.1 namely, Fagu Tudu has abated and Cr. Appeal No. 338 of 1993 qua appellants nos. 2 and 4 namely, Dhane Hembram and Gida Hembram has abated. 4. The appellant namely, Chandra Hembram was granted bail by an order dated 21.07.1993 and the other surviving appellants namely, Babu Ram Marandi and Rusi Lal Murmu were granted bail by this Court by an order dated 26.08.1993. 5. In Criminal Appeal No. 332 of 1993, Mr. Shubhashis Rasik Soren, the learned counsel appears for the appellant- Chandra Hembram. 6. Ms. Aprajita Bhardwaj, the learned Amicus appears for the appellants namely, Babu Ram Marandi and Rusi Lal Murmu in Criminal Appeal (D.B) No. 338 of 1993. 7. The prosecution''s case as narrated by the informant namely, Devi Shal Hembram, son of the deceased, is that on 28.03.1990 at about 10 p.m in the night the accused namely, Fagu Tudu and Chandra Hembram came to his house and asked for liquor from his father. At that time the informant and his mother along with his younger brother namely, Bablu Hembram were present in the house. When his father refused to give them money for liquor both the accused persons started assaulting his father with lathi. In the meantime, Lady Gida Hembram, Babu Ram Marandi, Dhane Hembram and Rusi Lal Murmu also came there and assaulted his father. There is specific allegation against the accused Gida Hembram, but against others there is allegation of assault by fists and kick. 8. In the meantime, Lady Gida Hembram, Babu Ram Marandi, Dhane Hembram and Rusi Lal Murmu also came there and assaulted his father. There is specific allegation against the accused Gida Hembram, but against others there is allegation of assault by fists and kick. 8. On the basis of fard-beyan of Devi Shal Hembram, Jama P.S. Case No. 24 of 1990 was lodged against Babu Ram Marandi, Dhane Hembram, Rusi Lal Murmu, Gida Hembram, Chandra Hembram and Fagu Tudu under Section 302/34, 449 IPC. Father of the informant day after the occurrence succumbed to the injuries. 9. During the trial, the prosecution has examined 9 witnesses. The informant namely, Devi Shal Hembram has been examined as P.W.6; he is the son of the deceased. Another son of the deceased namely, Bablu Hembram has been examined as P.W. 1. The prosecution has also examined brother of the deceased namely, Ganesh Hembram, wife of the deceased namely, Elis Kisku and nephew of the deceased namely, Begam Hembram as P.W. 3, P.W. 4 and P.W. 8 respectively. The doctor who has conducted post-mortem examination has been examined as P.W.5. He has found the following injuries on the dead body of Sanatan Hembram: 1. One lacerated wound 2" x " x bone deep over forehead on the right side. On dissection there was fracture of frontal bone extending upto right parietal bone. On further dissection there was laceration of brain and meninges bloods clots were present in crandium. 2. Lacerated wound " x " x 1/8" on the right buttock. 3. Echymosis over the right eye brow and below the right eye. 10. The learned Additional Sessions Judge has found P.W.1, P.W.4, P.W.6 and P.W.8 eye-witnesses. The learned trial Judge has held that the prosecution has successfully proved the charges framed against the accused Fagu Tudu and Chandra Hembram u/s 302 I.P.C and u/s 449 IPC. Other accused persons have been convicted u/s 323 I.P.C and u/s 451 IPC. 11. Mr. Subhashish Rasik Soren, the learned counsel has made the following submissions; (i) the prosecution has failed to prove the manner of occurrence and the place of occurrence (ii) identification of the accused who has given the fatal blow is not established and (iii) conviction of the appellants Chandra Hembram and Fagu Tudu u/s 302 IPC simplicitor for death of Sanathan Hembram is illegal. 12. Ms. 12. Ms. Aprajita Bhardwaj, the learned Amicus has interalia contended that; (i) involvement of the appellants-Babu Ram Marandi and Rusi Lal Murmu is not disclosed by all the prosecution witnesses, (ii) falsity of the prosecution''s case at least in respect of the appellant no.1 namely, Babu Ram Marandi and the appellant no.3 namely, Rusi Lal Murmu is established from contradiction in the medical evidence and the ocular evidence as no injury corresponding to the assault by these appellants has been proved by the prosecution. 13. The learned Sessions Judge has recorded a finding that death has been caused due to the head injury. 14. The prosecution''s case is consistent on the point of assault on the head of the deceased Sanathan Hembram by the accused Fagu Tudu and Chandra Hembram. The informant-P.W.6 namely, Devi Shal Hembram, who is the son of the deceased, has made specific allegation of assault by Fagu Tudu and Chandra Hembram on the head of his father. Another son of the deceased namely, Bablu Hembram-P.W.1, who has also been found an eye-witness by the Additional Sessions Judge, has made a similar allegation of assault by lathi on the head of his father by these two accused persons. Evidence of these two prosecution witnesses is corroborated by the evidence of P.W.4 and P.W.8. The witness- P.W.4 is none other but wife of the deceased Sanathan Hembram and P.W.8 namely, Begum Hembram is an independent witness. These witnesses have stood the test of cross-examination and nothing could be elicited from them during their cross- examination by the defence. 15. Now, the first question is whether on such evidence the surviving appellant in Cr. Appeal No. 332 of 1993 (P) namely, Chandra Hembram can be convicted u/s 302 IPC simplicitor. 16. Section 300 IPC provides that culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or the bodily injury intended to be caused was likely to cause death and it was within the knowledge of the accused, or the bodily injury was sufficient in ordinary course of nature to cause death, or the accused had knowledge that his act is so imminently dangerous that it would cause death. On the basis of the evidences led during the trial of Sessions Case No. 505 of 1990, it cannot be held that Chandra Hembram had the requisite intention or knowledge to cause death of Sanathan Hembram; both the accused persons namely, Fagu Tudu and Chandra Hembram alleged to have assaulted Sanathan Hembram with lathi on his head. Presence of the appellant Chandra Hembram and the accused Fagu Tudu at the place of occurrence is, however, established from the prosecution''s evidence and participation of Chandra Hembram is also established. 17. Before conviction of an accused is recorded under section 302 I.P.C simplicitor, it must be found that he was the author of the fatal blow. 18. The manner of occurrence described by the prosecution in which Fagu Tudu and Chandra Hembram have assaulted Sanathan Hembram does not disclose that the present appellant has taken undue advantage or acted in an unusual manner. The appellants have assaulted Sanathan Hembram with lathi on his head and, therefore, from this act of their''s it could have been inferred that they had knowledge that their act is so imminently dangerous that it may cause death, but then, only one head injury had been found by the doctor who has conducted autopsy and out of the two appellants, who infact has inflicted the blow on the head of Sanathan Hembram is not proved by the prosecution. In our opinion, particularly in view of nature of the injury found on the head of the deceased which is grievous in nature, when it is not established who is the one who has given the fatal blow conviction of two persons u/s 302 IPC would not be proper. Accordingly, conviction of the appellant Chandra Hembram u/s 302 I.P.C is set-aside and he is convicted under section 326/34 IPC. His conviction under section 449 IPC is found correct and accordingly confirmed. 19. On conviction of other accused persons u/s 323 IPC, we find that against the accused Rusi Lal Murmu and Babu Ram Marandi there is no specific allegation, though there is specific allegation against the accused Gida Hembram. All the prosecution witnesses have consistently supported the case against the accused Gida Hembram; during pendency of the criminal appeal she has died and therefore individual role played by her is not required to be examined. All the prosecution witnesses have consistently supported the case against the accused Gida Hembram; during pendency of the criminal appeal she has died and therefore individual role played by her is not required to be examined. Insofar as the appellant Babu Ram Marandi is concerned, the learned Amicus has demonstrated that P.W.2, P.W.7 and P.W.8 have failed to disclose his name in their evidence in the Court. The learned Amicus has rightly pointed out that the injury no. 2 which refers to a lacerated wound on the buttock of the deceased cannot be caused by assault with fists and kicks. 20. P.W. 2 had gone to the house of Sanathan Hembram when he was informed about the incident. He has said that son of Sanathan Hembram had called him and when he went there he found Sanathan Hembram alive. He has further stated that he was told that Chandra Hembram, Fagu Tudu, Gida Hembram and Rusi Lal Murmu have assaulted Sanathan Hembram. This witness has not named Dhane Hembram and Babu Ram Marandi as the accused persons. P.W. 7 is a hearsay witness who says that wife of Sanathan Hembram told him that Fagu Tudu, Chandra Hembram, Gida Hembram and Rusi Lal Murmu have killed him. This witness has also not named Dhane Hembram and Babu Ram Marandi as amongst the accused persons. P.W. 8 has been projected by the prosecution as an eye-witness. The learned trial Judge has found him an independent witness. This witness, however, has not disclosed complicity of Babu Ram Marandi, Rusi Lal Murmu and Dhane Hembram in the occurrence in which Sanathan Hembram has suffered injuries. We further find that the allegation of assault by fists and kick cannot cause lacerated wound on the right buttock. The only injury which can be ascribed to the remaining three accused appellants is echymosis over the right eye-brow. With reference to the textual authority the learned Amicus has tried to demonstrate that the injury over and below the right eye of the deceased cannot be caused by the assault by three accused persons by fists and kicks and, thus, the manner of occurrence in respect to assault by the appellant nos. 2 to 4 is not proved. With reference to the textual authority the learned Amicus has tried to demonstrate that the injury over and below the right eye of the deceased cannot be caused by the assault by three accused persons by fists and kicks and, thus, the manner of occurrence in respect to assault by the appellant nos. 2 to 4 is not proved. If all the accused persons have assaulted the deceased with fists and kick, it is unbelievable that only one injury has been detected by the doctor who has conducted the post-mortem examination. 21. On the basis of the aforesaid evidences led by the prosecution it cannot be said that the prosecution has established presence of the appellant nos. 1 and 3 at the place of occurrence. In view of the aforesaid inconsistencies in the evidence, led by the prosecution on participation of appellant nos. 1 and 3 in the occurrence, it also cannot be said that they have committed the offence of house tress-pass. In the above facts, we hold that the prosecution has failed to establish the charge under section 448 and 323 IPC against the appellant nos.1 and 3 and, accordingly, their conviction under section 323 and 451 IPC is set-aside. 22. In the result, Criminal Appeal No. 332 of 1993 (DB) is partly allowed. Conviction and sentence of the appellant- Chandra Hembram are set aside and he is convicted u/s 326/34 IPC and sentenced to undergo R.I for 5 years with fine of Rs. 10,000/- which shall be paid within six weeks. In default of payment of fine, the appellant Chandra Hembram shall undergo R.I for further one month. Bail-bonds furnished by the appellant namely, Chandra Hembram in Criminal Appeal (D.B.) No. 332 of 1993 (P) is cancelled. He is directed to surrender before the court below to serve the remaining sentence. 23. Criminal Appeal (DB) No. 338 of 1993 in respect of the appellants- Babu Ram Marandi and Rusi Lal Murmu is allowed. Their conviction and sentence in Sessions Case No. 505 of 1990 are set aside. 24. The appellants- Babu Ram Marandi and Rusi Lal Murmu are discharged of liability of the bail bonds furnished by them. 25. We appreciate the efforts of Ms. Their conviction and sentence in Sessions Case No. 505 of 1990 are set aside. 24. The appellants- Babu Ram Marandi and Rusi Lal Murmu are discharged of liability of the bail bonds furnished by them. 25. We appreciate the efforts of Ms. Aprajita Bhardwaj, the learned Amicus who has meticulously prepared a list of dates and detailed notes on the prosecution evidence running into 11 pages and ably assisted the Court arguing this criminal appeal on behalf of the appellants in Criminal Appeal No. 338 of 1993 (P). We also appreciate the assistance rendered by Mr. Subhashish Rasik Soren, the learned counsel and Mr. Satish Kumar Keshri, the learned A.P.P. 26. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bill(s). She shall be paid Rs.5500/- for each effective date of hearing, but subject to the cap as provided under the Notification dated 23.11.2017. 27. Let the lower-court records be transmitted to the court concerned forthwith.