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2020 DIGILAW 282 (CAL)

Khandu Murmu v. State Of West Bengal

2020-02-26

JOYMALYA BAGCHI, SUVRA GHOSH

body2020
JUDGMENT Joymalya Bagchi, J. - The appeal is directed against the judgment and order dated 11.05.2015 and 12.05.2015 passed by the learned Additional Sessions Judge (Redesignated) Court, Bankura in Sessions Trial No.11(04)14 arising out of Sessions Case No.02(09)12 convicting the appellants for commission of offence punishable under Sections 302/34 of the Indian Penal Code and sentencing them to suffer imprisonment for life and to pay fine of Rs.2,000/- each, in default, to suffer simple imprisonment for one year for the offence punishable under Sections 302/34 of the Indian Penal Code. 2. Prosecution case alleged against the appellants is to the effect that on 01.04.2011 the deceased Tularam Murmu had gone to his ancestral residence and had demanded his share from agricultural produce from his brothers, the appellants herein. Over this issue a quarrel ensued between the deceased on the one hand and the appellants on the other hand. Appellants assaulted the deceased with fists, blows and kicks. He died at the spot. Initially, son of the deceased, Lakhindar Murmu (PW 14) informed local police that his father had died due to excess consumption of liquor. Accordingly, Shesh Kumar (PW 2), officer-in-charge of Onda Police Station started U.D. Case No.05/11 dated 01.04.2011 and an inquest over the body of the deceased was conducted by A.S.I. Biswajit Chakraborty. It was signed by Bablu Rahaman Choudhury (PW 1), Hekim Choudhury and Lakhindar Murmu (PW 14). Body of the deceased was sent for post mortem examination. 3. Dr. Prabir Chakraborty (PW 9) conducted post mortem over the dead body of the deceased. He found multiple injuries on the body of the deceased including fracture of ribs. He opined death was due to effect of injuries, ante mortem and homicidal in nature. 4. On receipt of post mortem report Shesh Kumar (PW 2) lodged suo motu complaint being Onda Police Station Case No.24/2012 dated 17.03.2012 against the appellants. 5. In conclusion of investigation, charge sheet was filed against the appellants and charge was framed against the appellants under Section 302/34 of the Indian Penal Code. 6. Prosecution examined 15 witnesses and exhibited a number of documents. The defence of the appellants was one of innocence and false implication. 7. In conclusion of trial, the learned Judge by the judgment and order dated 11.05.2015 and 12.05.2015 convicted and sentenced the appellants, as aforesaid. 8. Mr. 6. Prosecution examined 15 witnesses and exhibited a number of documents. The defence of the appellants was one of innocence and false implication. 7. In conclusion of trial, the learned Judge by the judgment and order dated 11.05.2015 and 12.05.2015 convicted and sentenced the appellants, as aforesaid. 8. Mr. Mallick appearing for the appellants submitted most of the prosecution witnesses have not supported the prosecution case. PW 1 was a signatory to the inquest report and had not disclosed that he had seen the assault on the deceased to police at the earliest opportunity. PW 6 and 7 were also present at the spot when the police arrived but did not divulge the fact that they had witnessed the assault. One year later, upon registration of FIR the witnesses had come out with the story that they saw the assault by the appellants. Hence the prosecution case ought not to be believed. 9. On the other hand, Mr. Ahmed argued the appellants had prevailed over the family members of the deceased including his son to not disclose the true circumstances leading to the homicidal death of the deceased. Accordingly, son of the deceased, Lakhindar Murmu (PW 14) gave a false explanation that his father had died due to excess consumption of alcohol. Such explanation relating to cause of death was falsified by the findings in the post mortem report and the prosecution case is well established against the appellants. 10. I have considered the evidence on record. Apart from PW 1, PW 6 and PW 7 other prosecution witnesses have not supported the case. PW 1 deposed on 01.04.2011 Tularam Murmu had come to the house of his brothers for inviting them to attend the marriage ceremony of his daughter. He asked for his share in the agricultural produce from landed property to meet the marriage expenses. He further deposed that he was proceeding to the field and saw a commotion. Appellants were assaulting Tularam Murmu with bamboo stick. As a result he died. In cross-examination he stated Tularam Murmu had married twice. Sasanka Murmu, son of Tularam Murmu was born from his first wife and was residing at village Dhabani. Tularam was residing with his second wife at village Upersole. He further stated that the tribal village is situated at a distance of 500 ft. from the village where Muslims reside. In cross-examination he stated Tularam Murmu had married twice. Sasanka Murmu, son of Tularam Murmu was born from his first wife and was residing at village Dhabani. Tularam was residing with his second wife at village Upersole. He further stated that the tribal village is situated at a distance of 500 ft. from the village where Muslims reside. PW 6 and PW 7 have corroborated the deposition of PW 1. In cross-examination, PW 6 admitted that he was present at the time when police came to the spot. He did not lodge any written complaint with the police. Evidence of the aforesaid witnesses has been strongly criticized by the appellants on the premises that they remained silent when the police arrived at the spot. After FIR was registered, one year after the incident, they claimed to be eyewitnesses. 11. I am unable to accept such contention. Reason for silence of the said witnesses is not too far to seek. There was a quarrel amongst the brothers over share of landed property. In the course of quarrel Tularam Murmu was assaulted by his brothers i.e. the appellants resulting in his death. Son of the deceased, Lakhindar Murmu (PW 14) claimed his father had died due to excessive consumption of alcohol. Since the family members did not wish to disclose the facts resulting in homicidal death of the victim before police, it is all but natural the villagers who had witnessed the incident remained mum. Only when the police registered FIR upon receiving post mortem report, the said witnesses came out with the real facts relating to the death of the victim. 12. Hence, I find no reason to discard the evidence of the aforesaid uninterested witnesses to the incident. However, analysis of their evidence show that the incident had occurred in the course of a sudden quarrel amongst brothers relating to their shares in agricultural produce. Appellants had acted on the spur of the moment and assaulted the deceased with fists, blows and lathis. Incident occurred without premeditation and it cannot be said that the appellants acted in a cruel or unusual manner. Appellants had acted on the spur of the moment and assaulted the deceased with fists, blows and lathis. Incident occurred without premeditation and it cannot be said that the appellants acted in a cruel or unusual manner. Accordingly, the act of the appellants would fall within the exception 4 of Section 300 of the Indian Penal Code and I am inclined to convert the conviction of the appellants under Section 302/34 of the Indian Penal Code to one under Section 304 Part I/34 of the Indian Penal Code. Sentence of the appellants is, accordingly, altered. They are directed to suffer rigorous imprisonment for ten years and to pay fine of Rs.2,000/- each, in default, to suffer simple imprisonment for one year more. 13. The period of detention, if any, undergone by the appellants during the period of investigation, enquiry and trial shall be set off against the substantive sentence, as aforesaid, in terms of Section 428 of the Code of Criminal Procedure. 14. The appeal is, accordingly, disposed of. 15. Let a copy of this judgment along with the lower court records be forthwith sent down to the trial court at once. 16. Photostat certified copy of this judgment, if applied for, shall be made available to the appellant within a week from the date of putting in the requisites. 17. I agree.