1
CRIMINAL APPEAL (DB) No. 632 of 2005
with
CRIMINAL APPEAL (DB) No. 1131 of 2007
with
CRIMINAL APPEAL (DB) No. 902 of 2005
with
CRIMINAL APPEAL (DB) No. 224 of 2005
----
Against the impugned judgment of conviction and order of
sentence dated 23.12.2004 and 24.12.2004 respectively passed in
Sessions Case No. 84 of 2002 by Shri Ashok Kumar Chand, 1st
Additional Sessions Judge, Dumka.
----
Seth Murmu .... .... Appellant (in Cr.A. No. 632/2005)
1. Samuel Murmu
2. Kinu Murmu .... .... Appellant (in Cr.A. No. 1131/2007)
Ranjan Murmu .... .... Appellant (in Cr.A. No. 902/2005)
Albin Murmu .... .... Appellant (in Cr.A. No. 224/2005)
Versus
The State of Jharkhand .... .... Respondent (in all cases)
....
For the Appellant : Mr. Dilip Kumar Prasad, Advocate.
For the State : Mr. A.B. Mahato, A.P.P.
....
PRESENT
THE HON'BLE MR. JUSTICE J.C.S. RAWAT
THE HON'BLE MR. JUSTICE PRASHANT KUMAR
....
C.A.V. ON: 11.12.2009 Delivered On: 19/ 12/2009
....
Prashant Kumar, J: The aforesaid four criminal appeals arose from the
common impugned judgment of conviction and order of sentence,
therefore, they are heard together and being disposed of by this
common judgment.
2. The appellants Kinu Murmu, Albin Murmu, Samuel
Murmu, Ranjan Murmu and Seth Murmu challenged the judgment of
conviction dated 23.12.2004 and order of sentence dated
24.12.2004
passed by 1st Additional Sessions Judge, Dumka in
Sessions Case No. 84 of 2002 whereby and whereunder they have
been convicted under sections 302/149 of the IPC and also under
Section 148 of the IPC and sentenced to undergo imprisonment for
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life and to pay fine of Rs. 5,000/- each for the offence under Section
302/149 I.P.C., however, no sentence has been passed under
Section 148 of the I.P.C.
3. The case of the prosecution in brief as per the fardbeyan
of P.W. 8, Snehlata Marandi is that on 26.10.2001 at about 6:00
a.m. in the morning her husband Parmeshwar Murmu (deceased),
brother-in-law Mishil Murmu (deceased) and son Philip Murmu
(deceased) were ploughing their land. It is stated that there was a
litigation in between informant’s husband and Ranjan Murmu with
respect to same land, which was decreed in favour of informant’s
husband. It is then alleged that while the deceased persons were
ploughing the land Ranjan Murmu, Seth Murmu, Samuel Murmu,
Kinu Murmu and Albin Murmu arrived there along with others armed
with sword, bows and arrows, iron rod, lathi etc. and forbid the
deceased persons from ploughing the land. It is further alleged that
on refusal of deceased, the aforesaid accused persons assaulted
the three deceased with sword, bows and arrows, iron rod and lathi,
due to that they died. It is further alleged that appellant Kinu Murmu
assaulted informant with sword due to that she received injury on
her head and hand. Thereafter, informant along with her daughter
Karesha Murmu went to the Dumka Sadar Hospital where she
received treatment. It appears that in the Hospital itself her
fardbeyan was recorded.
4. On the basis of aforesaid fardbeyan, police instituted
Gopikandar P.S. Case No. 20 of 2001 dated 26.10.2001 under
Sections 147, 148, 149, 324, 326, 307/302 of the IPC and took up
investigation. After completing the investigation, police submitted
charge sheet against the appellants and five others namely Guntish
Murmu, Paltan Murmu, Misil Murmu, Matru Murmu and Sujan
Murmu. On the basis of said charge sheet learned CJM, Dumka
took cognizance of the offence and committed the case to the court
of Sessions as the offence under sections 302 and 307 of the IPC
are exclusively triable by the court of Sessions.
5. After commitment, the case was transferred in the file of
2nd Additional Sessions Judge, Dumka for trial, who vide order dated
11.06.2002 framed the charges against the appellants and five other
accused persons (named above) under Sections 302, 148 and 149
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of the I.P.C. The accused Kinu Murmu was also charged under
Sections 307 and 226 of the I.P.C. for attempting to commit murder
of Snehlata Marandi. It further appears that the said charges were
read over and explained to the appellants and other accused
persons, to which they pleaded not guilty and claimed to be tried.
6. Thereafter, the prosecution had examined altogether 15
witnesses in support of its case. The prosecution had also brought
on record the three Post-mortem Reports (Ext. 1, 2 & 4), the Injury
Report of Snehlata Marandi (Ext. 6), Fardbeyan (Ext.8), Formal
F.I.R. (Ext. 9), Map (Ext. 10), Seizure lists ( Ext. 11 series and Ext.
10), Inquest Report (Ext. 7 series).
7. After the close of the case of prosecution, the statement
of appellants and other accused persons recorded under section
313 of the Cr.P.C. in which their defence is of total denial and false
implication. Appellant Seth Murmu had further taken a defence that
on the date of occurrence, he was admitted in Murarai Primary
Heath Center in the district of Birbhum (W.B.), therefore, he was not
present at the place of occurrence. It further appears that the
defence has also examined two witnesses in support of its case.
The defence also brought on record Ext. A & B – the F.I.R. and
fardbeyan of Gopikandar P.S. Case No. 20 of 2001; Ext.-C series –
the medical certificate, prescription and discharge certificate of Seth
Murmu; Ext. D series – Injury report of Shyamlal Murmu and Sarju
Murmu; Ext.-E – certified copy of order in Criminal Miscellaneous
Case No. 727 of 1995 dated 07.09.1995; Ext. F – certified copy of
order dated 20.01.1997 in Criminal Miscellaneous Case No. 879 of
1996; Ext. G – certified copy of Jamabandi Parcha of Jamabandi No.
4.
8. After considering the evidences available on record,
learned court below convicted the appellants under Sections
302/149 I.P.C. as also under Section 148 of the I.P.C. and
sentenced them to undergo imprisonment for life for the offence
under Sections 302/149 of the I.P.C. and to pay fine of Rs. 5000/-
each for the offence under Sections 302/149 of the I.P.C. No
separate sentence has been awarded under Section 148 of the
I.P.C. However, impugned judgment reveals that the appellant Kinu
Murmu neither acquitted nor convicted under Sections 307/326 of
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the I.P.C. It further appears that other co-accused namely Guntish
Murmu, Paltan Murmu, Misil Murmu, Matru Murmu and Sujan
Murmu were acquitted from the charges leveled against them. The
present appeals filed by the appellants against their conviction and
sentence as stated above.
9. While assailing the judgment of learned court below, Sri
Dilip Kumar Prasad, learned counsel for the appellants submitted
that admittedly there is enmity between the parties. He further
submitted that in the instant case the so-called eye witnesses are
closely related to the deceased. It is submitted that P.W.-5, Palian
Tudu is the wife of deceased Mishil Murmu, P.W.-8 Snehlata
Marandi is the informant and wife of deceased Parmeshwar Murmu,
P.W.-9 Karesha Murmu is the daughter of deceased Parmeshwar
Murmu, P.W.-3 Birju Lal Murmu is brother-in-law (sadhu) of
deceased Parmeshwar Murmu. It is submitted that there is no other
independent witness to support the case of prosecution. It is
submitted that there are contradictions in the statements of the eye
witnesses. P.W.-5 and P.W.-8 contradicted themselves with regard
to the weapon carried by the accused persons, which goes to show
that they had not seen the occurrence. Accordingly, it is submitted
that it is not safe to convict the appellants on the basis of their
testimonies without any corroboration from independent sources. It
is further submitted that learned court below had not accepted the
plea of alibi of appellant Seth Murmu merely on presumption that
the certificate was procured by him only for his defence. It is
submitted that the said presumption and/or finding is based on no
evidence, therefore, the same cannot be sustained by this Court. It
is submitted that in view of the aforesaid inherent illegality and/or
irregularity in the impugned judgment, the same is liable to be set
aside in these appeals.
10. On the other hand, learned Additional P.P. Sri A.B.
Mahato, submits that enmity is double edged weapon which cuts
both ways. It is submitted that in the instant case the motive of the
occurrence is the enmity between the parties in relation to the land
in question. It is further submitted that only because the witnesses
are closely related to deceased persons and the two family have
inimical relation, evidence of witnesses cannot be discarded. The
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law only demands that their evidences be scrutinized more
cautiously and carefully. It is submitted that on careful scrutiny of
evidence of P.W.-5, P.W.-8 and P.W. 9, it is clear that their
evidences are consistent, cogent and clear with respect to the place
of occurrence and manner of occurrence. It is further submitted that
the contradictions shown by the learned counsel for the appellants
is minor and trifling in nature which bound to occur in the
testimonies of witnesses due to lapse of time. It is submitted that all
the witnesses belongs to the community of scheduled tribes and
they have been examined after two years of the occurrence. Thus,
such contradictions are natural. Therefore, on the basis of said
contradictions, their evidences cannot be thrown over board. It is
further submitted that so far the plea of alibi is concerned, the
learned court below had rightly rejected the evidence of D.W.-1. It
is submitted that there is nothing on record to show that appellant
Seth Murmu is residing at Village-Murarai in the district of Birbhum
(W.B.). Therefore, under what circumstances, he went to Murarai
Primary Heath Center for treatment of loose motion and vomiting,
has not been explained by defence. It is further submitted that even
in the appeal filed to this Court the appellant has not mentioned that
he temporarily reside at Murarai. He has given his address in the
memo of appeal as resident of village Ranga Mission, P.S.-
Gopikanda, District-Dumka. This shows that the appellant has
procured ‘Ext.-C’ series only to create his defence. Accordingly, it is
submitted that there is no merit in these appeals and therefore, they
are liable to be dismissed.
11. Having heard the submission, we have gone through
the record of the case and carefully scrutinized the evidences
available on record. In the instant case, the homicidal death of
deceased Parmeshwar Murmu, Mishil Murmu and Philip Murmu,
has not been denied by the appellants. Moreover, the prosecution
has been able to prove the same from the evidences of P.W.-1,
P.W.-2 and P.W.-4, the doctors who conducted post-mortem
examination on the dead body of Parmeshwar Murmu, Mishil
Murmu and Philip Murmu respectively.
On the dead body of deceased Parmeshwar Murmu P.W.-1
Dr. Anant Kumar Jha had found the following injuries:
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(I) Two incised wound 2" x 1/2" x bone deep.
(ii) 2 1/2" x 1/2" x bone deep over the occipital region of the
scalp. On dissection there was fracture of the occipital
bone extending up to left parietal bone. On further
dissection brain and meninges found lacerated and
collection of blood found inside the cranium.
In the opinion of doctor the cause of death was hemorrhage
and shock, as a result of injury mentioned above, which is sufficient
to cause death.
P.W.-2 Dr. Debashish Rakshit had found the following
injuries on the dead body of deceased Philip Murmu:
(I) Sharp cut wound over the part of occipital region of
scalp size 2″ x 1/2″ x bone deep.
(ii) Sharp cut wound over left side of frontal bone size 1″ x
1/2″ x bone deep.
(iii) Diffuse swelling over left side of parietal bone. On
further dissection fracture of left parietal bone found.
Further dissection reveals blood clots inside cranial
cavity and brain matter and meninges found lacerated.
In the opinion of doctor the death was due to hemorrhage and
shock, as a result of injury no. 3 which is sufficient to cause death.
P.W.-4 Dr. Sita Ram Sah had found following injuries
on the dead body of deceased Mishil Murmu:
(i) Incised wound over middle part of scalp 3″ x 2″ x deep
to bone and other is 2″ x 1″ x deep to bone over
occipital region. On dissection of both wound,
underneath bones were fractured. Underneath brain
and membrane was lacerated and big hemorrhage was
there in cranial cavity.
(ii) Swelling whole of right side of chest. On dissection
there was fracture of 4th to 7th ribs. On further dissection
underneathy plura and lungs was lacerated and blood
clots found in plural cavity right.
(iii) An arrow was found over left forearm piercing skin,
muscles and other tissues.
In his opinion, the death of deceased Mishil Murmu caused
due to shock and hemorrhage, as a result of injury no.1 & 2.
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Thus, from perusal of aforesaid evidences of P.W.-1,
P.W.-2 and P.W.-4, I find that the prosecution has been able to
prove that the aforesaid three deceased persons died due to
injuries sustained by them.
12. Now the question remain to be decided in this case as
to whether these appellants have any hand in the commission of
murder of three deceased persons ? This brings me to consider the
other evidences available on record.
P.W. 3 Birjulal Murmu, is a co-viilager who happens to
be the sadhu (brother-in-law) of deceased Parmeshwar Murmu. He
stated that while he was going to the place of occurrence after
receiving information of murder, he saw appellant-Ranjan Murmu,
his son and nephew coming from that side. He is hearsay on the
point of manner of occurrence. He has proved his signature on the
seizure list.
P.W.-5, Palian Tudu, is the wife of deceased Mishil
Murmu. She deposed that at the time of occurrence she was in her
house. However, after hearing hulla, she went to the place of
occurrence. She further deposed that on being exhorted by Ranjan
Murmu, the appellants Seth Murmu, Samuel Murmu and Albin
Murmu killed deceased persons, whereas Kinu Murmu assaulted
Snehlata Marandi with sword and iron rod due to that she received
injury on her head and hand. She further deposed that the
aforesaid occurrence took place because of land dispute.
P.W.-6 Salvanus Marandi and P.W.-7 Katik Tudu are the
seizure list witnesses. They are hearsay on the point of occurrence.
P.W.-8, Snehlata Marandi, is the informant of this case.
She is an injured witness. She has also stated that on the date of
occurrence in the morning she was present in her field. She states
that appellant Ranjan Murmu, Seth Murmu, Albin Murmu, Samuel
Murmu, Kinu Murmu, Sujan Murmu, Paltan Murmu came at the
place of occurrence variously armed. She further states that
Ranjan, Samuel, Kinu, Albin were armed with sword whereas rest
person armed with bows and arrows. She further states that
accused persons forbid Parmeshwar Murmu, Mishil Murmu and
Philip Murmu from ploughing the land and thereafter they killed
Mishil Murmu, Philip Murmu and Parmeshwar Murmu. She had
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also been assaulted and she received injury on her head. She
further deposed that the aforesaid occurrence took place because
of land dispute.
P.W.-9, Karesha Murmu is the daughter of deceased
Parmeshwar Murmu. She has also deposed that after hearing hulla,
she went to the place of occurrence and saw that Ranjan Murmu,
Seth Murmu, Samuel Murmu, Kinu Murmu, Albin Murmu and others
had killed her father Parmeshwar Murmu, elder brother Philip
Murmu and uncle Mishil Murmu. She states that at that time all the
accused persons were armed with sword and bows and arrows.
P.W.-10 is the formal witness. P.W.-11 and P.W.-13
have been declared hostile as they have not supported the case of
prosecution.
P.W.-12 is the Doctor who examined the injuries on the
person of Snehlata Marandi and proved the injury report which is
(Ext.-6).
P.W.-14 is the I.O. and P.W.-15 is a formal witness who
brought and proved the material exhibits in the court.
13. Thus, on careful examination of evidences adduced on
behalf of prosecution, I find that the entire case of prosecution rest
on the evidences of P.W.-5, P.W. 8 and P.W.-9 who claimed
themselves to be eye witnesses of the occurrence. It is an admitted
position that there is enmity between the parties with respect to the
land where the occurrence took place. It is also an admitted
position that aforesaid three witnesses are closely related to
deceased persons.
14. It has been held by their lordships of Supreme Court in
Maranadu vs. State by Inspector of Police, Tamil Nadu reported
in 2009 (1) JLJ SC 4 that :
“7. Merely because the eye-witnesses are family
members their evidence cannot per se be
discarded. When there is allegation of
interestedness, the same has to be established.
Mere statement that being relatives of the
deceased they are likely to falsely implicate the
accused cannot be a ground to discard the
evidence which is otherwise cogent and credible.
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We shall also deal with the contention regarding
interestedness of the witnesses for furthering
prosecution version. Relationship is not a factor
to affect credibility of a witness. It is more often
than not that a relation would not conceal actual
culprit and make allegations against an innocent
person. Foundation has to be laid if plea of false
implication is made. In such cases, the court has
to adopt a careful approach and analyse
evidence to find out whether it is cogent and
credible.”
Thus, in view of the aforesaid judgment of their
lordships of Supreme Court – the evidence of eye witnesses who
are family members cannot be discarded merely on the ground of
interestedness. The law requires that their evidences be
approached and analysed carefully and if it appears to the court that
their evidences are cogent and credible then it is lawful for the court
to base conviction on the basis of their evidences.
15. In the instant case on careful scrutiny of evidence of
P.W.-5, P.W.-8 and P.W.-9, I find that they have been cross-
examined by the defence at length but the defence had elicited
nothing to impeach their credibility. They remained consistent with
regard to the place of occurrence and manner of occurrence.
P.W.-5 had also stated that when she reached to the place of
occurrence, she also found some injuries on the person of accused.
The aforesaid version of P.W.-5 is also consistent with the defence
version as mentioned in Ext.-A. It is further relevant to mention that
from perusal of Ext.-A I find that defence has also admitted that
P.W.-8 Snehlata Marandi (wife of Parmeshwar Murmu) was present
at the place of occurrence. The injury report (Ext.-6) also
corroborates the statement of P.W.-8 that she received injuries at
the time of occurrence. The statements of P.W.-5, P.W.-8 and
P.W.-9 further find corroboration from the evidence of P.W.-3 who
categorically stated that while he was going to the place of
occurrence, after receiving information of murder, he saw that
appellant Ranjan, his son and nephew were coming. There is
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absolutely no cross examination by the defence in this respect.
Thus, the aforesaid statement of P.W.-3 remained intact, which also
corroborates the statements of P.W.-5, P.W.-8 and P.W.-9. The
postmortem reports and the inquest reports also supports the
statements of aforesaid three eye witnesses. The physical finding of
the I.O. as well as seizure of weapons from the house of appellants
which were stained with blood also lent support to the evidences of
aforesaid eye witnesses. The contradictions pointed out in the
evidences of P.W.-5 and P.W.-8 by learned counsel for the
appellants with regard to the weapon possessed by the appellants,
in my view, are minor and trifling in nature, which bound to occur in
their evidences. It is relevant to mention that the occurrence took
place on 26.10.2001 and the witnesses were examined in the year
2003. It is also relevant to mention that apart from the five
appellants, other accused persons belong to other villages are also
participated in the commission of the present crime. Under the said
circumstance, after the lapse of time, it may be possible that some
contradictions may arose in the statements of witnesses with
respect of holding of weapons by different accused persons. Thus,
in my view, the said contradictions pointed out by the learned
counsel for the appellants have no bearing on the case of
prosecution. Thus, on careful scrutiny of the evidences of P.W.-5,
P.W.-8 and P.W.-9, I find that their evidence is consistent, cogent
and clear with respect to manner of occurrence which found full
corroboration in material particulars from other evidence available
on record. Hence, I am of the definite view that their evidence
cannot be thrown over board only on the ground that they are close
relative of deceased persons.
16. Now coming to the plea of alibi taken by appellant Seth
Murmu, it is worth mentioning that in the memo of appeal he stated
that he is resident of village Ranga Mission P.S.- Gopikandar,
District-Dumka. He has not mentioned that at the time of
occurrence he was residing at Murarai. There is nothing on record
to show as to why he went to Murarai Primary Health Centre for
treatment of loose motion and vomiting, when Sadar Hospital at
Dumka is available. Moreover, from perusal of Ext-C/1 & C/2, it
appears that the prescription and discharge certificate has been
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issued in favour of Seth Murmu C/o Alizabeth Tudu, resident of
Murarai Hospital Quarter, Murarai, Birbhum (W.B.). However, from
persual of Ext.-C, it appears that DW-1 had issued certificate on
08.11.2001 in which he has introduced Seth Murmu, S/o Ranjan
Murmu of Village Ranga Mission, P.S. Gopikandar, District-Dumka.
It is relevant to mention that DW-1 had deposed that the said Seth
Murmu was treated by Dr. Sadir Bhattacharya. Under the said
circumstance when Ext-C/1 & C/2 shows that it was issued in favour
of Seth Murmu C/o Elizabeth and then how the name of Ranjan
Murmu has been introduced has not been explained by DW-1 who
is not the attending doctor of aforesaid Seth Murmu. This
circumstance creates a doubt that Ext.-C (certificate issued by
DW-1) has been procured by the defence only to create a plea of
alibi. In this view of the matter, I find that plea of alibi of appellant
Seth Murmu has not been proved by the defence beyond the
shadow of all reasonable doubts.
17. In view of the fact that the defence had not denied the
occurrence as well as the presence of P.W.-8 at the place of
occurrence (in view of Ext.-A) and also taking into account that the
evidences of P.W.-5, P.W. 8 and P.W.-9, are consistent, cogent and
clear on the point of occurrence, which find corroboration from the
evidences of P.W.-3, Doctors P.W.-1, P.W.-2 and P.W.-4 and
P.W.-10 and also the I.O., I find that the prosecution has been able
to prove the charges leveled against the accused persons beyond
the shadow of all reasonable doubts. Therefore, I find no reason to
disagree with the conclusion of the court below that the appellants
had formed an unlawful assembly with lethal weapon and in
prosecution of common object of said unlawful assembly committed
murder of Parmeshwar Murmu, Missil Murmu and Philip Murmu.
Thus, I find that they have been rightly convicted and sentenced
under Sections 302/149 & 148 of the I.P.C.
18. In the result, I find no merit in the appeals, the same
are dismissed.
It appears that appellant Ranjan Murmu in Cr.Appeal
No. 902/05 is on bail. Thus, his bail bond is cancelled and he is
directed to surrender in the court below forthwith to carry out the
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sentence. The court below is also directed to take all coercive steps
for his appearance.
(Prashant Kumar, J.)
(J.C.S. Rawat, J) (J.C.S. Rawat, J)
Jharkhand High Court, Ranchi
Dated 19 / 12 /2009
Sunil/NAFR