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2022 DIGILAW 132 (JHR)

Simol Murmu v. State of Jharkhand

2022-02-03

NAVNEET KUMAR

body2022
JUDGMENT : This appeal is preferred against the Judgment of Conviction dated 31.07.2003 and order of sentence dated 01.08.2003 passed by the learned Additional District & Sessions Judge, FTC No.VI, Jmashedpur in S.T. No. 30 of 1997, arising out of Mango P.S. Case No.88 of 1996, corresponding to G.R. no.763 of 1996 whereby and wherein the accused appellant has been convicted for the offence punishable under Sections 342/324/307/34 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for six months under sections 342/34, three years under Sections 307/34 of IPC and two years rigorous imprisonment under Sections 324/34 of IPC and further directed to run all the awarded sentence concurrently. 2. The allegations against the appellant arose in the wake of the fardbeyan dated 13.4.1996 of informant Susanto Kumar Dutta who was the Manager of a Crusher Machine of Ashok Singh. He stated that on every Saturday, wages to labours were usually paid and on dated 13.04.1996 at about 3.30 pm, when the wages was paid to the labourers of the said Crusher, the accused-appellant Simol Murmu with Bhujali, Dilip Besra with Chaku (Knife) and Sushil Besra with lathi in their hands, surrounded the informant and started abusing him and Sushil Besra caught the hands of the informant from behind. The informant further stated that Dilip Besra and Simol Murmu assaulted the informant one after another by knife and bhujali by which the face and head of the informant got badly injured. Dilip Besra assaulted by knife on the eye and below the beard and Simol Murmu assaulted the informant on the temple and forehead upon which, the informant sustained injuries. It is further stated by the informant that when he tried to rescue himself from the clutches of the accused, then the bhujali of Simol Murmu fell on earth and the same was after taken by Sushil Besra who assaulted the informant on his shoulder by the said Bujali and at this time the informant tried to protect himself for which the informant got injured on his left palm of his hand.Then Munsi of the Crusher Satrughan Hansda, the driver Petho Murmu and Khalasi of the truck namely Budhram Murmu came and all of them caught him and then the accused persons fled away on Hulla and thereafter he was taken to hospital for the treatment. 3. 3. On the basis of the aforesaid fardbeyan, FIR was lodged, the case was registered under Sections 341/342/324/326/307/34 of IPC against the accused and investigation was taken up. After investigation, the police submitted the charge-sheet in this case, on the basis of which, cognizance of the offence was taken and the case was committed to the Court of Sessions. 4. It appears that the charges were framed against three accused persons including the appellant Simol Murmu and Dilip Besra and Sushil Besra for the offences punishable under sections 342/324/326/307 read with section 34 of the IPC on 09.04.1997 where the accused pleaded not guilty to the charges explained to them and denied the allegation levelled against them and thereafter on 31.5.1999 the two co-accused persons namely Dilip Besra and Sushil Besra pleaded guilty and both of them on the basis of being pleaded guilty were convicted for the offence punishable under section 307/34 of the IPC and sentenced to undergo RI for 3 years to each of the co-accused Dilip Besra and Sushil Besra and after trial of the accused-appellant Simol Murmu, the learned court below passed the impugned judgment of conviction and order of sentence, which is under challenge in this appeal. 5. Heard learned defence counsel appearing on behalf of the appellant and learned APP appearing on behalf of the State. 6. Assailing the impugned judgment of conviction and order of sentence, learned defence counsel contended that the impugned Judgment and order of sentence passed by the Court below is not at all sustainable in the facts and circumstances of this case. It is further submitted that the learned court below did not consider the enmity between the parties and the contradictions of the prosecution witnesses and the prosecution witnesses are most interested witnesses in this case as all are employees of the Crusher and as such, it is submitted by learned defence counsel that it is a fit case, in which, the impugned Judgement and order of sentence passed by the learned court below be set-aside. 7. 7. On the other hand the learned APP appearing on behalf of the State contended that the learned trial court has rightly convicted the appellants for the offences punishable under sections 342,324 and 307/34 of the Indian Penal Code on the basis of cogent and reliable evidences and awarded the sentence accordingly and hence there is no merit in the appeal and it is fit to be dismissed. 8. Having heard the parties and after going through the records, it is found that the charge against the appellant was that he was one of the accused who had visited to the place of occurrence, which was a crusher machine site of one Ashok Singh. PW-1 Satrudhan Hansda is said to be Munsi in the said crusher machine site and the victim PW-3 Sushanto Kumar Dutta was the manager of the said crusher site and PW-2 Bhudram Murmu was the khaIasi (staff) of the vehicle at the crusher machine site. The three accused persons including this appellant had reached to the place of occurrence at the crusher site armed with Bhujali, knife and lathi. All of them had assaulted the victim informant Sushanto Kumar Dutta. It is purported that the appellant Simol Murmu had assaulted by Bhujali on the right temporal region and on the forehead and co-accused persons namely Dilip Besra and Sushil Besra had also assaulted upon the eyes and below the beard of the face and on the palm of the hand and after the occurrence the victim fell down on the ground in the bloody state(ensanguine) and the khalsi of the truck Budhan MurmuPW-2 and the driver Petho Murmu took the injured manager P.W.3 to the hospital for the treatment. Munshi Satrudhan PW-1 and the khalsi of the truck Budhan Murmu PW-2 along with the driver Petho Murmu were present. It is found that as per the PW -4 Dr. S.K. Bhatnagar, who had medically examined the injury of the injured P.W.3 Sushanto Kumar Dutta on 13.04.1996 at 5.15 P.M. and found the following injuries on the body of the said injured Sushanto Kumar Dutta as under : 1. Incised wound right pinna 1”x 1/2” 2. Incised wound on right temporal region 2”x1/2”x bone deep 3. Incised wound on right palm 1 1/2 x 1/2 “ x 1/4” 4. Lacerated circular wound right orbital region. 5. Incised wound right pinna 1”x 1/2” 2. Incised wound on right temporal region 2”x1/2”x bone deep 3. Incised wound on right palm 1 1/2 x 1/2 “ x 1/4” 4. Lacerated circular wound right orbital region. 5. Incised wound right sub mendubalary 3”x1/4”x1/4” In addition - LW Nose 2”x1/2”x1/2” in size Nasal bone x-ray No.R1879 dated 13.04.1996. Nature of injury grievous It is found from the deposition of the doctor, who has been examined as PW -4 Dr. S.K. Bhatnagar stated vide para 3 that the opinion was reserved and he had proved the photocopy of the injury report, which has been marked as Ext.-2. Further this witness PW – 4 stated that Dr. A.S. Jangbahadur and M.S. Jain had examined the victim and had given their opinion regarding the nature of the injuries, but neither the Dr. A.S. Jangbahadur nor Dr. M.S. Jain have been examined by the prosecution and therefore the defence could not take the opportunity to cross-examine the doctor with respect to the nature of the injuries and they have been debarred from their valuable right to hold meaningful cross-examination of the doctors, who had given the opinion regarding the nature of injuries. However, from perusal of Ext-2, which is not found in original and the photo copy of the injury report is marked as Ext.2 and that too not proved by the makers of Ext. 2 by the doctors Dr. A.S. Jangbahadur and Dr. M.L. Jain, it is manifest that the injuries No.2 to 5 are simple in nature and one injury is found to be grievous in nature. From perusal of the Ext 2 it is found that there is overwriting in indicating the nature of injuries with respect to injury No.2 to 5 which appears that it has been manipulated from injuries No.1 to 5 as injuries No.2 to 5 and categorised as simple in nature. Further on the back of Ext. 2, it is found one additional injury was found in the nose by Dr. M.L. Jain measuring 2’’x 1”x 1/2” insize, but in absence of the cross-examination of the concerned doctor M.L. Jain who had given the opinion about the nature of injury, the said nature of injury remained unsubstantiated and also the accused appellant could not get the opportunity to question the concerned doctors namely Dr. M.L. Jain measuring 2’’x 1”x 1/2” insize, but in absence of the cross-examination of the concerned doctor M.L. Jain who had given the opinion about the nature of injury, the said nature of injury remained unsubstantiated and also the accused appellant could not get the opportunity to question the concerned doctors namely Dr. A.S. Jangbahadur and M.L. Jain about the nature of weapon used in causing such injuries. Further it is also found that neither of weapons have been brought on record in order to show the doctor as to whether the injuries purported to have been inflicted are caused by the said weapon or not, because the I.O has also not been examined in this case and therefore it has seriously caused prejudiced to the defence in absence of the non-examination of the doctor, who had given the opinion about the grievous injury and also about the weapon, which is said to have been used in inflicting injuries upon the injured PW – 3. Further it is also found from the deposition of PW-3, the injured, vide paras 8, 9 and 10 that the attention of this witness was drawn on his earlier statements before the police during the course of the investigation, but since the I.O. has not been examined and therefore the effective and convincing cross-examination could not take place and the accused appellant failed to bring out the contradictions or inconsistencies in his earlier statements. Further it has also been pointed out vide para 10 of PW-3 that blood was oozed at the place of occurrence and the shirts, trousers and pant were stained with blood, and hence in absence of the examination of the I.O, the case of the prosecution becomes weak as to whether the blood stained cloths were found and seized or not, nor they have been marked as Exhibits and therefore the nature of injuries, particularly with respect to injury No.1 in absence of any weapon or blood stained cloths cannot be inferred about the intention or knowledge of the accused appellants to cause death of the injured victim PW -3 and therefore the accused appellant inter alia convicted for the offence under Section 307 of IPC is not corroborated in absence of the examination of the I.O and examination of the concerned doctors Dr. A.S. Jangbahadur and M.L. Jain, who have given the opinion with respect to the nature of injuries. A.S. Jangbahadur and M.L. Jain, who have given the opinion with respect to the nature of injuries. Therefore it is fatal to hold the guilt of the accused-appellant for the offence punishable under section 307 of the IPC. Further from perusal of Exhibit 2 it is manifest that there are five injuries indicated and at one place it is opined by doctor Dr. A.S. Jangbahadur that “Injuries no.2 (overwriting) to 5 are all simple in nature” while on the back side is found that another doctor namely M.L. Jain again examined the injured and indicated grievous injury without any specific averments of injury. Further the Ext.2 is photo copy and not original and neither of the doctors namely Dr. A.S. Jangbahadur nor Dr. M.L. Jain have been examined therefore the veracity of their opinion is highly doubtful and discarded, and since it is found that all the injuries are similar in nature and therefore, it is very difficult to infer that the injury No.1 was grievous, when the other injuries have been found simple in nature. Further it is found from the FIR that there is no whisper about asking the extortion or rangdari by the accused persons including this appellant from the informant, although it has been stated in para 13 of the cross-examination of P.W.3, which is a major deviation from the FIR and it is exaggerated version and since the I.O has not been examined and therefore the defence has been debarred to draw the attention about the re-statement of PW-3 recorded by the I.O. 9. Nevertheless, the fact remains to take into consideration that the accused appellant along with other persons went to the place of occurrence and assaulted PW-3, have been consistently and uniformly supported by PW-1 and PW-2 also, who are the Munsi and the driver of the truck present at the place of occurrence, which is the crusher machine side of one Ashok Kumar Singh. They have also stated that this appellant along with other co-accused persons had come and they had sustained the injuries upon the informant PW-3, who was the manager of the site. They have also stated that this appellant along with other co-accused persons had come and they had sustained the injuries upon the informant PW-3, who was the manager of the site. Learned trial court had rightly appreciated the evidences so far as offences punishable under sections 342 and 324 of IPC are concerned as the depositions of PW-1 and PW-3 clearly manifest that this appellant had assaulted PW-3, by which, he had sustained the injuries in order to attract Sections 342 and 324 of IPC read with Section 34 along with other accused persons, inasmuch as, it has been held by the learned trial court also, that there are some discrepancies about the place of inflicting injury on the body of PW-3 either by this appellant and by the two accused persons namely Dilip Besra and Sushil Besra. It is also found from the impugned judgment that the two co-accused Dilip Besra and Sushil Besra had pleaded guilty in the court below itself and therefore they did not face the trial and both of them were convicted and sentenced on the basis of plead guilty. 10. Having taken into consideration the aforesaid appraisal of the testimonies of the witnesses, particularly PW-3 and PW-4 along with PW-1 and PW-2, it is founded that the charges against the accused appellant are substantiated to the extent that the appellant along with other two co-accused persons namely Dilip Besra and Sushil Besra had assaulted by holding the victim PW-3, upon which, PW-3 had sustained the injuries and therefore the prosecution has been able to prove the guilt of the appellants for the offences punishable under Section 342,324/34 of IPC and no offence under Section 307 of IPC is proved and established as there is no cogent evidence to infer knowledge or intention of the accused appellant to substantiate the charge of attempt to commit murder. 11. Accordingly, this Court alters the conviction of the appellant and found him guilty and convicted for the offences punishable under Sections 342 and 324 read with Section 34 of IPC and the impugned judgment of conviction and order of sentence for the offence punishable under Section 307/34 of IPC is set-aside. 12. 11. Accordingly, this Court alters the conviction of the appellant and found him guilty and convicted for the offences punishable under Sections 342 and 324 read with Section 34 of IPC and the impugned judgment of conviction and order of sentence for the offence punishable under Section 307/34 of IPC is set-aside. 12. On the point of sentence it is found that the accused-appellant Simol Murmu had already remained in jail and further it has been stated that the alleged occurrence is of year 1996, more than 25 years and the sole appellant had been suffering the trauma and hardships of the criminal proceedings for such a long period and therefore it is submitted on behalf of the appellant that a lenient view may be taken, and accordingly in this view of the matter it is found that there is nothing on record about the criminal history of the appellant. Further, it is found that the accused appellant is of middle aged person and hence instead of awarding the sentence of further imprisonment, the accused-appellant Simol Murmu is sentenced to the imprisonment for the period already undergone in the composite manner under both the counts under Sections 324 and 344 of IPC read with Section 34 of IPC. 13. In this view of the matter, this appeal is partly allowed with modification in order of sentence as above. Since the appellant Simol Murmu is on bail, he is discharged from the liabilities of bail bonds. 14. Let the Lower Court Record be sent back forthwith to the concerned court below.