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2022 DIGILAW 167 (JHR)

Lakhi Ram Tudu v. State of Jharkhand

2022-02-11

NAVNEET KUMAR

body2022
JUDGMENT : The case was heard through video conferencing. None of the parties found any flaws with audibility/visibility during the course of hearing the matter. 2. This appeal is preferred against the Judgment of Conviction dated 03.09.2003 and order of sentence dated 05.09.2003 passed by the learned Sessions Judge Dumka (S.P.) in S.C. Case No.163 of 1996, arising out of Shikaripara P.S. Case No.53 of 1995, corresponding to G.R. Case No.832 of 1995, whereby and where under, these three surviving appellants Lakhi Ram Tudu, Khuriya Marandi and Gopal Tudu along with two other appellants(who died during the pending of this appeal namely, Sufal Tudu and Dhena Marandi @Manjhi Marandi) were convicted for the offences punishable under Sections 341 and 304 of IPC read with Section 149 of IPC and they were sentenced to undergo R.I. for seven years under Section 304 Part II of the IPC and further convicted and sentenced to undergo S.I. for one month under Section 341 of IPC, and both the sentence were directed to run concurrently. 3. The short facts of the present case is that the informant Baha Tudu wife of late Chhoman Marandi gave her fardbayan on 02.11.1995 at 8.30 am, which is recorded by S.I. Ajay Kumar Chaurasiya Shikaripara P.S., at Chiristian Hospital, Mohulpahari in presence of her dewar Pubilal Marandi and her father Gupin Tudu near the dead body of her husband and alleged that about 16 days earlier (16.10.1995) her Cousin father-in-law Dhena Marandi and one Som Marandi quarrelled with each other at 12 noon and in the meantime her husband came and intervened in the quarrel. Then the said Dhena Marandi pushed down husband of the informant and rushed to the house of Lakhi Ram Tudu. Then her husband chased Dhena Marandi and thereafter all the accused persons namely Lakhi Ram Tudu, Gopal Tudu, Sufal Tudu, Khuria Marandi, surrounded the husband of the informant and assaulted him with Chappu (wooden shaft used for boating) lathi and legs out of which the left side of the head of the husband of the informant was fractured and he fell down. Then the informant and her relatives brought the injured Chhoman Marandi to Christian hospital, Mohulpahari where he was going under treatment but during treatment he died in the night of 01.11.1995. 4. Then the informant and her relatives brought the injured Chhoman Marandi to Christian hospital, Mohulpahari where he was going under treatment but during treatment he died in the night of 01.11.1995. 4. Thereafter the police on the basis of the fardbayan registered Shikaripara P.S. Case No.53 of 1995, the police investigated the case and submitted charge-sheet u/s 341, 304/34 of IPC against all the accusedappellants and then the cognizance was taken and the case was committed to the Court of Sessions. Learned trial court after conclusion of the trial, found all the five accused persons guilty for the offence punishable under Section 304 Part II of IPC and Section 341/149 of IPC and passed the impugned judgment of conviction and order of sentence, which is under challenge. 5. Heard learned defence counsel Mr. Abhijeet Kr. Singh, Amicus Curiae, appointed by the Jharkhand State Legal Services Authority from the Legal Services Panel Lawyer and learned A.P.P. Mrs. Niki Sinha, appearing on behalf of the State. 6. It appears from the record that out of five appellants, appellant No.2 Sufal Tudu and appellant No.5 Dhena Marandi @ Manjhi Marandi have died and their names have been deleted from the cause title of memo of appeal vide order dated 20.10.2021 and this appeal is abated against both the deceased appellants by this Court as none of the near relatives come forward on behalf of the deceased appellants to continue with this appeal and the remaining three appellants have been renumbered as Appellant No.1 Lakhi Ram Tudu, appellant No.2 Khuriya Marandi and appellant No.3 Gopal Tudu, against whom, this appeal was heard. Arguments on behalf of the appellants 7. Learned defence counsel appearing on behalf of the appellants assailing the impugned judgment of conviction and order of sentence submitted that the learned trial court failed to consider that out of nine witnesses, seven of them are hearsay witnesses and this fact has not been taken into consideration by the learned court below. Arguments on behalf of the appellants 7. Learned defence counsel appearing on behalf of the appellants assailing the impugned judgment of conviction and order of sentence submitted that the learned trial court failed to consider that out of nine witnesses, seven of them are hearsay witnesses and this fact has not been taken into consideration by the learned court below. It has further been pointed out that as per the prosecution story, the appellants had assaulted the deceased with legs, fists, slaps, lathi and chappu (wooden shaft used for boating), but surprisingly only one external injury over the left partial region of scalp was found and that too caused by hard and blunt substance and as such, the learned trial court has failed to appreciate that the single injury cannot be attributed by the five appellants, who have been alleged to have assaulted the deceased and therefore utmost it is case against the appellants for the offence punishable under Section 323 of IPC and not for the offence punishable under Section 304 part II of IPC. It has further been pointed out that the occurrence is said to have taken place on 16.10.1995 and the fardbayan was recorded on 02.11.1995 after the lapse of about 16 days, without any cogent explanation and further the statement of the deceased has also not been recorded by the police at the time of his death nor it has also been brought on record for appreciation during the course of trial. It has further been pointed out that there is no specific allegation alleged against any one of the appellants, who are at present before the appeal namely Lakhi Ram Tudu, Khuriya Marandi and Gopal Tudu and the entire allegation is against the deceased appellant Dhena Marandi @ Manjhi Marandi and as such it is urged on behalf of the appellants that the impugned judgment of conviction and order of sentence is bad in law and fit to be set aside. Arguments on behalf of the State 8. Arguments on behalf of the State 8. On the other hand the learned A.P.P. appearing on behalf of the State submitted that the learned trial court has rightly appreciated the depositions of the eyewitnesses PW – 1 and PW – 4 supported by the hearsay evidences and also the post mortem report and the deposition of the doctor P.W.6 and also the I.O. PW 7 and found the appellants guilty for the offences punishable under Sections 341 and 304 part II read with Section 149 of IPC and there is no legal point to interfere into the Judgment and order of sentence and this appeal is fit to be set-aside being devoid of merit. Appraisal and Findings 9. Having heard learned counsel for the parties and after going through the records including the lower court records, it is found that it is factual case of the prosecution that the deceased appellant Dhena Marandi was the cousin father-in-law of the informant Baha Tudu and the said deceased appellant Dhena Marandi was quarrelling with one Som Marandi, when the husband of the informant namely Chhoman Marandi (the deceased) intervened, both of them started quarrelling and the deceased appellant Dhena Marandi along with other accused persons including these three appellants assaulted by Chappu(wooden shaft used for boating), lathi, legs and fists upon the deceased, by which he got injured and thereafter he was taken to Mohulpahari hospital, where during the course of treatment he succumbed to the injuries after 16 days and thereafter the case was instituted. It is further admitted case of the prosecution that the deceased appellant Dhena Marandi was having illicit relationship with the mother of the deceased as the deceased appellant was the devar of the mother of the deceased and the mother of the deceased has been examined as PW-9 Somani Soren and she has admitted that the deceased appellant Dhena Marandi @ Manjhi Marandi was her devar and he used to visit at her residence and illicit relationship between the mother of the deceased and the deceased appellant Dehena Marandi has been admitted by PW – 4 Raju Marandi vide para 8 & 9. Further it is found that the learned trial court has categorised this witness PW – 4 Raju Marandi as a eyewitness, but this witness in para 11 had categorically stated that he could not state that the Dhena (deceased appellant) had killed the deceased. This witness PW – 4 had categorically stated that there was a dispute between the deceased and one Som Marandi and this Som Marandi has been cited as witness, but he has not been examined by the prosecution and said Som Marandi is said to be the genesis of the occurrence, inasmuch as it is admitted case of the prosecution that the dispute arose at the outset between the deceased appellant Dhena Marandi and Som Marandi and when the husband of the informant intervened, then quarrel took place between the deceased appellant Dhena Marandi and thereafter the said Dhena Marandi along with other co-accused persons including these three appellants have assaulted the deceased, by which, he succumbed to the injuries. Ext.1 and 1/1 are the signatures on the Fardbeyan and inquest report of P.W.2 Rubilal Marandi, signature of P.W.5 Gupin Tudu on the inquest report as Ext.1/2, post-mortem examination report as Ext.2, FIR as Ext.3, Fardbeyan as Ext. 4, and injury report as Ext.5 and charge-sheet as Ext.-6. 10. PW – 1 Baha Tudu is the eyewitness and he also stated the deceased appellant Dhena Marandi and Som Marandi were quarrelling with exchange of hot words and then her husband intervened and then her husband was assaulted by the accused persons by Chappu (pointed wooden shaft by which, the boat is driven). She did not make any specific statement in her testimony before the court that these appellants were involved in assaulting Chhoman Marandi (the deceased) with any specific role in the alleged assault. This witness also did not utter a single word about the assault by any one of these appellants either Appellant No.1 Lakhi Ram Tudu or appellant No.2 Khuriya Marandi or the appellant No.3 Gopal Tudu, in any specific manner. 11. PW – 2 Rubilal Marandi, PW – 3 Palu Marandi, PW – 5 Guipin Tudu, PW – 8 Kishun Marandi and PW – 9 Sonamuni Soren were hearsay witnesses and they have deposed in a sweeping manner by naming the name of all the accused-appellants in omnibus and general manner. 11. PW – 2 Rubilal Marandi, PW – 3 Palu Marandi, PW – 5 Guipin Tudu, PW – 8 Kishun Marandi and PW – 9 Sonamuni Soren were hearsay witnesses and they have deposed in a sweeping manner by naming the name of all the accused-appellants in omnibus and general manner. Further no specific participation in the assault by these three appellants upon the deceased has been pointedly and specifically corroborated even by the depositions of the Dr. Soban Murmu PW – 6, who had conducted the post mortem of the deceased Chhoman Marandi and found the following ante mortem injures: “One stitched wound with margin lacerated 3”x1 ½”x skin deep over the left parietal region of scalp. On dissection of the scalp bone was intact. On further dissection there were blood clots inside the cranium.” 12. This doctor has proved the post mortem examination report, which has been marked as Ext. -2 and he stated that the victim was assaulted on his head by which, he died. Thus only one injury was found on his head and thereafter in the light of categorical deposition of the doctor and finding about the injury, it is established that only one injury was inflicted upon deceased and the case of the prosecution is that it was the deceased appellant Dhena Marandi, who was quarrelling with the deceased and had assaulted along with the co-accused persons. Natural inference is that it was the deceased appellant Dhena Marandi, who had assaulted and other appellants did not participate in the commission of the offence as evident from the FIR also and from the testimony of the witness PW 1 also as discussed above in forgoing paragraphs, and further the genesis of the entire occurrence is also the deceased appellant Dhena Marandi because it is stated by another purported eyewitness PW – 4 that the deceased appellant was having illicit relationship with mother of the deceased as the mother of the deceased was the bhabhi of the deceased appellant Dhena Marandi and PW – 9 mother of the deceased has accepted this fact that Dhena Marandi had been visiting her house off and on. 13. The I.O. in this case has also been examined as PW -7 Ajay Kr. Chaurasia and he has proved Exts.3, 4, 5 & 6, which are FIR, fardbayan, injury report and the charge-sheet. 14. 13. The I.O. in this case has also been examined as PW -7 Ajay Kr. Chaurasia and he has proved Exts.3, 4, 5 & 6, which are FIR, fardbayan, injury report and the charge-sheet. 14. Recapitulating the aforesaid appraisal and discussions of the testimonies of the witnesses and the documents available on record, it is well founded that the genesis of the occurrence was the dispute between the deceased appellant Dhena Marandi and the deceased Chhoman Marandi and not these three appellants. Further it is also admitted case of the prosecution that in fact the deceased had chased Dhena Marandi, which is evident from the FIR itself and thereafter the quarrel took place between the deceased appellant Dhena Marandi and the deceased, who had sustained the injuries purportedly by the pointed wooden shaft of the boat, legs and he succumbed to the injuries after sixteen days. It is also not explained in a cogent manner about the delay in the institution of the FIR, which has been instituted after 16 days, although the treatment of the deceased had commenced on the date of mar-pit (quarrel) itself at Christian hospital, Mohulpahari. 15. In this view of the matter, no offence under Sections 341 and 304 part II of IPC is made out against these three appellants and the learned trial court did not appreciate the evidences in a holistic manner particularly PW – 1 and PW -4, who are said to be the eyewitness with respect to the involvement of this three appellants in the commission of the offence and thereby the judgment of the conviction and order of sentence passed against these three appellants are bad in law and fit to be set-aside. 16. In the result the Judgment of Conviction dated 03.09.2003 and order of sentence dated 05.09.2003 against the Appellant No.1 Lakhi Ram Tudu, the appellant No.2 Khuriya Marandi and the appellant No.3 Gopal Tudu,passed by the learned Sessions Judge Dumka (S.P.) in S.C. Case No.163 of 1996, arising out of Shikaripara P.S. Case No.53 of 1995, corresponding to G.R. Case No.832 of 1995 are set-aside. 17. As such, this appeal is allowed. 18. The appellants are on bail and they are discharged from the liability of bail bonds. 19. Let the Lower Court Record be sent back forthwith to the concerned court below along with a copy of this judgment.