1. Matal Hansda 2. Mangal Hansda 3. Dheba Hembram … v. State of Bihar
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (D.B.) No.499 of 1990 1. Matal Hansda 2. Mangal Hansda 3. Dheba Hembram … … Appellants Versus State of Bihar (Now Jharkhand ... ... Respondent ------ CORAM: HON’BLE MR. JUSTICE D.N.PATEL HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR For the Appellant: For the Respondent: Per D.N. Patel, J.
Legal Reasoning
------ Mr. K.K. Ojha A.P.P. ----- 1. This appeal has been preferred against the judgment and order of conviction and sentence both dated 22nd September, 1990, passed by 2nd Additional Sessions Judge, Santhal Parganas, Dumka in Sessions Case No. 201 of 1985. The present appellants, who are original accused nos. 2, 3 and 1 respectively, have been punished for committing murder of the deceased. The sentences awarded to the appellants are as under: a. Matal Hansda : Imprisonment for life for the offence punishable u/s 302/149 , Rigorous Imprisonment for one year u/s 147 IPC and Rigorous Imprisonment for offence u/s 379 IPC (All sentences to run concurrently). b. Mangal Hansda: Imprisonment for Life u/s 302/149, Rigorous Imprisonment for two years for offence punishable u/s 148 IPC and Rigorous Imprisonment for two years for the offence punishable u/s 379 IPC (All sentences to run concurrently). c. Dheba Hembrom: Life Imprisonment for the offence punishable u/s 302/149, Rigorous Imprisonment for two years for offence punishable u/s 148 IPC and Rigorous Imprisonment for two years for the offence punishable u/s 379 IPC (All sentences to run concurrently). 2. Case of the prosecution is that on 6th October, 1984, at 5 p.m., informant Sarjant Murmu gave fardbayan to the police that on 6th October, 1984 at 10 a.m., his cousin, Chapu Murmu informed him that accused Matal Hansda, Mangal Hansda and several other persons were harvesting the standing paddy crops from the field of the informant. -2- Thereupon, informant along with his father Somain Murmu,uncle Shibu Murmu and brothers Bhoju Murmu and Dhano Murmu went to his field, which is situated towards the south of the village at Dehari Santhali Bangal, P.S. Hiranpur and found accused Matal Hansda, Mangal Hansda, Deva Hembrom, Dhano Soren and a mob, all variously armed, harvesting the standing paddy crops from the field of the informant. On intervention of Somain Murmu accused Matal Hansda, at once, started assaulting Somain Murmu with lathi. Accused Mangal Hansda, who was armed with arrow and lathi, Deva Hansda armed with Tangari, Dhano Soren armed with arrow and lathies and other miscreants who were armed with Hasua and Tangi (Axe), all at once started assaulting Somain Murmu, Shibu Murmu, Bhoju Murmu and Dhano Murmu. The informant retreated towards the village and returned back with some of the villagers, who were arriving towards the place of occurrence on hearing 'Hulla', such as Lakhiram Soren, Sanat Hansda, Marang Hansda, Raban Hansda, Raison Hansda and Sanatan Hansda and the mother of the informant, namely Lakhi Hansda and they all saw that the accused persons were dragging all the four injured eastward, but, on seeing the witnesses and villagers, accused persons and the miscreants fled away leaving behind the dead bodies. The informant and witnesses found that all the four persons, i.e. Somain Murmu, Shibu Murmu, Bhoju Murmu and Dhano Murmu were already dead. 3. It is submitted by counsel for the appellants that the prosecution has failed to prove the offence of murder beyond reasonable doubt. The so- called eye witnesses, i.e. P.W. 6, P.W.7 and P.W. 9, were, in fact, not the eye witnesses at all. Their statements were never recorded under Section 161 Cr.P.C. Moreover, the names of so-called eye witnesses were also not mentioned in the chargesheet as prosecution witnesses. There are only 10 chargesheeted witnesses, whereas prosecution has examined 19 prosecution witnesses. Moreover, there is a gross discrepancy in narration of weapons used by these appellants as per the deposition of the prosecution witnesses and as stated in the F.I.R. Counsel for the appellants has also heavily relied upon paragraph no. 25 of the deposition of the P.W. 6 (informant) and submitted that he is not an eye witness at all. Similarly he has also relied upon Paragraph No. 5 of the deposition of P.W.7 and submitted that P.W. 7 is also not an eye witness. Similarly, looking to the deposition of P.W.9 and especially cross examination of -3- this witness, it appears that she is also not an eye witness at all. Thus, P.W.6, 7 and 9 are not trustworthy witnesses at all. This aspect of the matter has also not been properly appreciated by the learned trial court and hence, judgment and order of conviction and sentence deserves to be quashed and set aside. 4. We have heard the Additional Public Prosecutor appearing on behalf of the State, who has submitted that case of the prosecution is based upon deposition of the eyewitnesses. They have clearly narrated the role played by these appellants and looking to the medical evidence given by P.W.1 (Dr.Miss P.Sahay), who has conducted post mortem examination of the deceased persons, there is enough corroboration of the deposition of the prosecution witnesses. It is submitted by the counsel for the State that there may be discrepancies between the ocular evidence and medical evidence, because medical evidence is an opinion only, whereas case of the prosecution is based upon more than one eye witness, i.e. P.W. 6, 7 and 9 and looking to their deposition, it appears that prosecution has proved the fact that offence of murder of the deceased has been committed by these appellants beyond reasonable doubt. This aspect of the matter has been properly appreciated by the learned trial court and therefore, this appeal may not be entertained by this court. 5. Having heard counsel for both sides and looking to the facts and circumstances of the case, it appears that the whole incident has taken place on 6th October, 1984 at about 10 a.m. and P.W.6 has informed the police at about 5 p.m. on the same day that the appellants and other co accused assaulted Somain Murme, Shibu Murmu, Bhoju and Dhano Murmu when they were harvesting paddy crops in their field. The assault was made by sticks, bows and Tangi. Deva Hembrom, who is original accused number 1, used Tangi. Matal Hansda used sticks and Mangal Hansda used bows as well as sticks in causing murder of the deceased persons and after committing murder, these appellants ran away leaving behind the dead bodies and the informant P.W.6 and other witnesses found that four persons have been murdered. Thereafter, investigation was carried out, chargesheet was filed and the case was committed to the court of sessions being Sessions Trial No. 201 of 1985. 6. Looking to the depositions of the prosecution witnesses, altogether 19 witnesses have been examined, out of which P.W.6, P.W. 7 and P.W.9 -4- are eye witnesses, whereas P.W. 1 is Dr. Miss P.Sahay, who carried out post mortem examination of four dead bodies. Postmortem reports are at Exhibit 1, 1/1,1/ 2, 1/3. Further, P.W. 11 is also a doctor Navin Chand Mahto, who has proved the injury certificate of original accused number 1, which is at Ext. 6. P.W. 19 is the Investigating Officer. 7. Now, looking to the evidence of P.W.6 (informant), who is projected as an eye witness, it appears that he has narrated that original accused no.1 Deva Hembrom used weapon Tangi, Matal Hansda , who was original accused no. 2 used sticks and original accused no. 3 Mangal Hansda used weapon Tangi in causing injuries. There is discrepancy in description of the weapons in the hands of the respective accused persons as stated in his deposition from what he had described in the F.I.R. lodged by him before the police. Looking to his cross examination and specially paragraph number 25 of his deposition, it appears that he is not an eye witness at all. Overall cross examination of this prosecution witness makes it clear that he was not present when the offence had taken place. Similarly, looking to the deposition of another eye witness, i.e. P.W. 7, he has narrated the weapon in the hand of the original accused number 1 as Ari. Weapon in the hand of original accused number 2 as narrated by him is a stick and for original accused number 3, the weapon was bow and arrow and stick for causing murder of the deceased and looking to para 5 of the deposition of P.W.7, it appears that he is not an eye witness at all. The cross examination of this witness makes it clear that he is a got-up witness. His statement was also not recorded by the police under section 161 Cr.P.C. and he is stating about the incident for the first time before the court. Therefore, P.W. 7 is not a trustworthy witness. Similarly, looking to the deposition of P.W.9 Chapu Murmu, who is the daughter of victim Shibu Murmu, it appears that as stated by the prosecution, she rushed to the field immediately at the time of the occurrence. Looking to over all evidence of this witness also, it appears that there is discrepancy in the description of the weapons used by the appellants. There is no consistency in the deposition of P.W.6, 7 and 9. Looking to the deposition of P.W.19, who is the investigating officer, it appears that statements of P.W. 7 and P.W.9 were not recorded under section 161 Cr.P.C. Thus, these two witnesses have deposed for the first time before the concerned trial court. This aspect of the matter has not been appreciated by the learned trial court. Thus, looking to the evidence on record, there is -5- discrepancy in the deposition of the prosecution witnesses about the weapons used by the accused persons. Moreover, looking to the deposition given by P.W.11 Dr. Navin Chand Mishra , there is injury upon the person of original accused no. 1. The injury certificate is at Ext. 6. The prosecution has not explained the injury sustained by accused no. 1. Further, P.W. 12, 13 and 14 have not supported the case of the prosecution and P.W. 17 is a tendered witness. 8. Therefore, In view of the evidences on record, it appears that the prosecution has failed to prove the charges of murder beyond reasonable doubt against all the appellants. Accordingly, this appeal is allowed and the judgment and order of conviction and sentence dated 22nd October, 1990, passed by the learned 2nd Additional Sessions Judge, Santhal Parganas, Dumka in Sessions Case No. 201 of 1985 is hereby, set aside. Appellants are on bail due to suspension of sentence, by the order of this court, therefore, their bail bonds are discharged. Their surities are also discharged from their liability. (D.N.Patel, J.) (Shree Chandrashekhar, J.) Jharkhand High Court, Ranchi Dated 5th March, 2013 s.m./ N.A.F.R.