High Court
Case Details
Death Reference No. 1 of 2024 With Cr. Appeal (DB) No. 274 of 2024 ------ (Against the judgment and order of conviction and sentence dated 29.01.2024 (sentence passed on 30.01.2024) by Sri Vishwa Nath Shukla, learned Sessions Judge, Chaibasa in Sessions Trial No. 03 of 2020) ----- The State of Jharkhand ……Appellant Versus ------ Versus ------ Saluka Hembrom With Cr. Appeal (DB) No. 274 of 2024 Saluka Hembrom The State of Jharkhand … Respondent ….Appellant ……Respondent ------ CORAM : HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY : HON’BLE MR. JUSTICE DEEPAK ROSHAN (in D. Ref. No. 1 of 2024): For the Appellant For the Respondent
Legal Reasoning
: Mr. Pankaj Kumar, P.P. : Mr. Kumar Vaibhav, Advocate (in Cr. Appeal (DB) No. 274 of 2024): For the Appellant For the Respondent : Mr. Kumar Vaibhav, Advocate : Mr. Pankaj Kumar, P.P. ------ R. Mukhopadhyay, J. Heard Mr. Kumar Vaibhav, learned counsel for the appellant and Mr. Pankaj Kumar, learned P.P. 2. and sentence dated 29.01.2024 (sentence passed on 30.01.2024) in S.T. This appeal is directed against the judgment and order of conviction No. 03/2020 by Sri Vishwa Nath Shukla, learned Sessions Judge, Chaibasa, whereby and whereunder, the appellant has been convicted for the offence under Section 302 of the Indian Penal Code and has been sentenced to death along with a fine of Rs.1,00,000/- and on non-payment of fine, to undergo simple imprisonment of two years. 3. Hembrom wherein it has been stated that she along with her husband and The prosecution case arises out of the Fardbeyan of Chariba children live in the village and earn their livelihood through farming. On 11.09.2019, her husband along with Kotram Hembrom and others had gone to remove the bushes from a barren land and after the work was completed all of them returned and had meal at 3. P.M. in the house of Kotram Hembrom and thereafter left for their respective houses. The husband of the informant and her cousin brother in law-Saluka Hembrom (appellant) left for their own houses. At about 5 P.M., the eight year old son of the informant namely Basu Hembrom had gone to pick ‘Saag’ nearby when he rushed back to the house and disclosed that Saluka Hembrom was assaulting his father with a ‘dauli’. When the informant rushed to the place of occurrence she saw her husband lying on the ground in an injured state. Saluka Hembrom on seeing the informant and her son fled away from the place of occurrence after leaving the bloodstained ‘dauli’ behind. Her husband disclosed that Saluka had assaulted him and he will not live and while saying this, he died. The reason for the occurrence is a land dispute between her husband and Saluka Hembrom. 4. 2019 was instituted for the offence punishable under section 302 IPC Based on the aforesaid allegations, Goelkera P.S. Case No. 25 of against Saluka Hembrom. On completion of investigation, chargesheet was submitted against the accused Saluka Hembrom, after which cognizance was taken and the case was committed to the Court of Sessions where it was registered as S.T. No. 3/2020. Charge was framed under section 302 IPC which was read over and explained to the accused in Hindi to which he pleaded not guilty and claimed to be tried. 5. of its case. The prosecution has examined as many as eight witnesses in support P.W-1-Dr. Jit Lal was posted as a Medical Officer at Sub Divisional Hospital, Chakradharpur and on 13.9.2019, he had conducted autopsy on the dead body of Ramdhan Hembrom and he had found the following injuries:- 1. 2. 3. 4. 5. 6. Rigor mortis present. Cut injury on left cheek upon left lip size-4”x1”x1/2”. Cut injury back of below right shoulder size-6”x1”x3”. Cut injury below right eye size-1”x1/2”x1/2”. Heart, lungs, Spleen, Liver and all other viscera-empty. Stomach, undigested food. The cause of death has been opined to be due to hemorrhage from injury site. He has proved the postmortem report, which has been marked as Ext-1. In cross-examination, he has deposed that such type of injury may 2 Death Reference No. 1/2024 With Cr. Appeal (DB) No. 274/2024 sustain due to fall from reasonable height on sharp object if falls on one side. P.W-2-Chariba Hembrom has stated that the incident had occurred three years back. Her husband Ramdhan Hembrom had gone to clear the bushes in the land of Kotram Hembrom and after completing the work he had ‘Haria’ along with the other persons who had also gone to cut the bushes. Thereafter all left for their respective homes. When her husband was crossing the house of Saluka Hembrom he was assaulted with a ‘dauli’. At that point of time, she was grazing cattle when her son informed about the assault committed by Saluka Hembrom, at which she witnessed the assault. She immediately rushed to her aunt and disclosed about the incident at which she and her aunt came back to the place of occurrence where her aunt saw her husband lying on the ground with injuries on his person. The police had come and her Fardbeyan was recorded. In cross-examination, she has deposed that on seeing the occurrence she had not raised any alarm but had fled away. She knows Saluka since he is her brother-in law. Prior to the incident, there was no dispute between Saluka and her husband. P.W-3-Oyban Hembrom is the brother of the deceased Ramdhan Hembrom who has stated that the incident was disclosed to him over phone by his sister in law. He has identified his signature in the seizure list of seized bloodstained ‘dauli’ and blood soaked earth which has been marked as Ext- P-2. He has identified his signature in the inquest report, which has been marked as Ext-P-3. The Fardbeyan of his sister in law Chariba Hembrom was recorded by the police in his presence. He has proved his signature upon the Fardbeyan, which has been marked as Ext-P-4. In cross-examination, he has deposed that he had not witnessed the occurrence. P.W-4-Basu Hembrom is the ten year old child of the deceased who has stated that he and his mother were picking ‘Saag’ in front of the house of Saluka when he and his mother on hearing the cry of alarm rushed inside where they found Saluka assaulting his father with a ‘dauli’. His father thereafter breathed his last and Saluka had in the meantime left the ‘dauli’ and had fled away. In cross-examination, he has deposed that he had seen the incident from a distance of 15 ft. There was no previous dispute between his father 3 Death Reference No. 1/2024 With Cr. Appeal (DB) No. 274/2024 and the accused. P.W-5-Mahendra Korah has stated that on information received from Sikur Hembrom he had gone to the place of occurrence and had found the dead body of Ramdhan lying in the courtyard of Saluka Hembrom. Saluka Hembrom had committed the murder because of a land dispute. In cross-examination, he has deposed that he is not the eye witness to the occurrence. He is the Munda of the village who is called in the meetings to resolve the disputes. P.W-6-Jaisingh Hembrom has stated that Sikur Hembrom had disclosed to him that his son Ramdhan Hembrom was done to death with a ‘dauli’ by Saluka Hembrom. The cause of the incident is a land dispute. In cross-examination, he has deposed that he is not an eye witness to the occurrence. P.W-7-Sikur Hembrom is the father of the deceased who has stated that his son was murdered by Saluka Hembrom with a ‘dauli’. In cross-examination, he has deposed that he had not seen the incident. P.W-8-Subodh Kumar Singh was posted at Goelkera P.S. as an Assistant Sub Inspector of Police and on 12.9.2019, the village Munda, Mahendra Kora had come to the police station and informed that in village- Arahasa, the dead body of Ramdhan Hembrom was lying in the courtyard of Saluka Hembrom. He and the other police personnel on such information reached village-Arahasa where the Fardbeyan of Chariba Hembrom was recorded. He has proved the Fardbeyan, which has been marked as Ext-P- 4/1. He has proved the seizure list of seized bloodstained ‘dauli’ and bloodstained earth, which has been marked as Ext-P-2/1. The inquest report has been proved and marked as Ext-P-3/1. The dead body was sent for autopsy and on the oral directions of A.S.I. Minhaz Ahmed he took over investigation of the case. The place of occurrence is at a distance of 16 kilometers from the police station at village-Arahasa Tola Dangursai in the courtyard of Saluka Hembrom where it is said that Ramdhan Hembrom was assaulted with a ‘dauli’ by Saluka Hembrom. He has stated that near the deadbody, a bloodstained ‘dauli’ was recovered, for which a seizure list was prepared. In course of investigation, he had recorded the statement of Basu Hembrom, Oyoman Hembrom, Mahendra Kora, Jagsingh Hembrom and 4 Death Reference No. 1/2024 With Cr. Appeal (DB) No. 274/2024 Sikur Hembrom who all had supported the prosecution case. He has identified the handwriting and signature of A.S.I.Minhaz Ahmed in the registration of the F.I.R., which has been marked as Ext-P-4/2. He has proved the formal F.I.R. which has been marked as Ext-5. He had sent the bloodstained earth and bloodstained ‘dauli’ to the Forensic Science Laboratory for examination. He had obtained the postmortem report and after receiving orders of the superior authority had submitted chargesheet against Saluka Hembrom under section 302 IPC. In cross-examination, he has deposed that Basu Hembrom had stated The statement of the accused was recorded under section 313 Cr.P.C. that he had witnessed the occurrence. 6. in which the accusations levelled against him were denied. 7. appearing for the appellant, that the conviction of the appellant is based on It has been submitted by Mr. Kumar Vaibhav, learned counsel the purported eye witness account of P.W-2 and P.W-4 but their version suffers from major contradictions and therefore cannot be relied upon. It has been submitted that there has been an inexplicable delay in lodging the F.I.R. There is a discrepancy in the version of the informant in the F.I.R. and in her deposition before the trial court which creates a grave doubt on her evidence. The motive has not been proved by the prosecution and no independent witness has been examined to lead credence to the prosecution case. 8. been advanced that the learned trial court had not afforded a proper On the point of sentence imposed upon the appellant, submission has opportunity of hearing to the appellant. Neither the trial court enabled the appellant to produce all mitigating circumstances nor it ascertained the mitigating circumstances itself. The trial court has not even taken into consideration the probability of the appellant being reformed and rehabilitated. It has been submitted that the present case is not a rarest of rare case inviting death sentence. 9. P.W-2 and P.W-4 are consistent and corroborative and the presence of the Mr. Pankaj Kumar, learned P.P., has submitted that the evidence of deadbody of Ramdhan Mahto in the courtyard of the appellant with a bloodstained ‘dauli’ lying besides him is a pointer to the truthfulness of such evidence. He has submitted that such evidence is further enhanced by the 5 Death Reference No. 1/2024 With Cr. Appeal (DB) No. 274/2024 fact that the blood found in the ‘dauli’ was ascertained to be of human nature. He has therefore submitted that the judgment of the learned trial court need not be interfered with as it is based on proper appreciation of the evidence on record. 10. We have heard the learned counsel for the respective parties and have also perused the Lower Court Records. 11. The Fardbeyan of the informant reveals about she and her son witnessing the assault committed upon the husband of the informant by the appellant with a ‘dauli’ by giving repeated blows which resulted in his death. The scenario prior to the occurrence reveals that Ramdhan Hembrom (deceased), the appellant and several other persons of the village had gone to a barren land of Kotram Hembrom to clear the bushes and after completing the work had meal and ‘haria’ in the house of Kotram Hembrom after which all left for their respective houses. The deceased and the appellant who are cousin brothers were returning together and near the house of the appellant the murderous assault on Ramdhan Hembrom had taken place. The Fardbeyan reveals about the son of the informant witnessing the incident and informing the informant who also had seen the occurrence of the appellant committing the murder of her husband. Though a semblance of land dispute between the deceased and the appellant seems to have surfaced in the Fardbeyan as a motive for the occurrence but the evidence of P.W-2 (informant) and P.W-4 (son of the informant) have categorically ruled out any motive for the incident. Absence of motive would have played an influential part in a case based on circumstantial evidence but the present case is not of such a nature as P.W-2 and P.W-4 have neither waivered nor had developed their case and has been largely consistent with the original version given in the Fardbeyan of P.W-2. As per P.W-2, on the fateful day, she was grazing her goats when her minor son-P.W-4 informed her about the assault and on rushing to the place of occurrence, she witnessed the incident. P.W-4 has stated about he and P.W-2 picking “Munga Saag” in front of the house of the appellant when he had seen the occurrence and informed P.W-2. The presence of P.W-2 and P.W-4 at the place of occurrence have therefore been established by the prosecution. The bloodstained ‘dauli’ recovered from the place of occurrence is also consistent with the Fardbeyan and the evidence of P.W-2 regarding the 6 Death Reference No. 1/2024 With Cr. Appeal (DB) No. 274/2024 appellant fleeing away from the place of occurrence after leaving the ‘dauli’ and as per the FSL report, the same contained human blood. The evidences of P.W-2 and P.W-4 being wholly reliable, the absence of motive would have no bearing in the case of the defence. 12. Vs. Mahaveer Singh and others reported in 2016 SCC Online SC 1163 wherein it has been held as follows:- In such context, reference may be made to the case of Yogesh Singh “46. It has next been contended by the learned counsel for the respondents that there was no immediate motive with the respondents to commit the murder of the deceased. However, the trial court found that there was sufficient motive with the accused persons to commit the murder of the deceased since the deceased had defeated accused Harcharan in the Pradhan elections, thus putting an end to his position as Pradhan for the last 28-30 years. The long nursed feeling of hatred and the simmering enmity between the family of the deceased and the accused persons most likely manifested itself in the outburst of anger resulting in the murder of the deceased. We are not required to express any opinion on this point in the light of the evidence adduced by the direct witnesses to the incident. It is a settled legal proposition that even if the absence of motive, as alleged, is accepted that is of no consequence and pales into insignificance when direct evidence establishes the crime. Therefore, in case there is direct trustworthy evidence of the witnesses as to commission of an offence, motive loses its significance. Therefore, if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence could not be discarded only on the ground of absence of motive, if otherwise the evidence is worthy of reliance. (Hari Shanker v. State of U.P. [Hari Shanker v. State of U.P., (1996) 9 SCC 40 : 1996 SCC (Cri) 913] , Bikau Pandey v. State of Bihar [Bikau Pandey v. State of Bihar, (2003) 12 SCC 616 : 2004 SCC (Cri) Supp 535] , State of U.P. v. Kishanpal [State of U.P. v. Kishanpal, (2008) 16 SCC 73 : (2010) 4 SCC (Cri) 182] , Abu Thakir v. State of T.N. [Abu Thakir v. State of T.N., (2010) 5 SCC 91 : (2010) 2 SCC (Cri) 1258] and Bipin Kumar Mondal v. State of W.B. [Bipin Kumar Mondal v. State of W.B., (2010) 12 SCC 91 : (2011) 2 SCC (Cri) 150] )”. 13. The learned trial court therefore on a correct appreciation of evidence had rightly convicted the appellant for the offence under section 302 IPC and we consequently affirm the same. 14. So far as the sentence of death awarded to the appellant is concerned, we may refer to the case of Dattatraya Vs. State of Maharashtra reported in (2020) 14 SCC 290 wherein it has been held as follows:- “132. For effective hearing under Section 235(2) of the Code of Criminal Procedure, the suggestion that the court intends to impose death penalty should specifically be made to the accused, to enable the accused to make an effective 7 Death Reference No. 1/2024 With Cr. Appeal (DB) No. 274/2024 representation against death sentence, by placing mitigating circumstances before the Court. This has not been done. The trial court made no attempt to elicit relevant facts, nor did the trial court give any opportunity to the petitioner to file an affidavit placing on record mitigating factors. As such the petitioner has been denied an effective hearing”. In Mohd. Mannan @ Abdul Mannas Vs. State of Bihar reported in 15. (2019) 16 SCC 584 it has been held as follows:- “72. The proposition of law which emerges from the judgments referred to above is itself death sentence cannot be imposed except in the rarest of rare cases, for which special reasons have to be recorded, as mandated in Section 354(3) of the Criminal Procedure Code. In deciding whether a case falls within the category of the rarest of rare, the brutality, and/or the gruesome and/or heinous nature of the crime is not the sole criterion. It is not just the crime which the Court is to take into consideration, but also the criminal, the state of his mind, his socio-economic background, etc. Awarding death sentence is an exception, and life imprisonment is the rule. 73. Therefore, before imposing the extreme penalty of death sentence, the Court would have to satisfy itself that death sentence is imperative, as otherwise the convict would be a threat to society, and that there is no possibility of reform or rehabilitation of the convict, after giving the convict an effective, meaningful, real opportunity of hearing on the question of sentence, by producing materials. 74. The legal assistance provided to the convict at every stage including the stage of hearing on the question of sentence has to be effective and even if the accused has remained silent, the Court would be obliged and duty-bound to elicit relevant factors. Opportunity should have been given to the convict to bring on record mitigating circumstances for reduction of the sentence and a balance struck between the aggravating and the mitigating circumstance”. In the present case, no subjective satisfaction has been recorded by 16. the learned trial court while holding the case to be rarest of rare and thereby imposing death sentence upon the appellant. The reasons recorded in the impugned judgment are as follows:- “Heard both parties and perused the record thereafter, I find that, the convict killed the deceased by giving repeated blow of ‘Dauli’ upon vital parts of his body in presence of his minor son, P.W-4 namely, Basu Hembrom, aged about 10 years and his wife P.W-2 namely, Chariba Hembrom and life of the convict will be danger to life of the informant and her minor son who deposed against him therefore, I hold that the murder is the ‘Rarest of Rare’ therefore, convict A 1 is hereby awarded sentence to Death and shall also be liable to pay fine amount of Rs.1,00,000/- which is to be paid to wife and son of the deceased as compensation and in default of payment of fine further to 8 Death Reference No. 1/2024 With Cr. Appeal (DB) No. 274/2024 undergo S.I. for 02 years”. 17. The learned trial court got swayed by the gruesome nature of the offence and has thereby ignored the other factors necessary for imposing such harsh punishment. Snuffing out a human life is itself a diabolical act but that by itself would not invite a death sentence as the mitigating and aggravating circumstances have also to be taken into consideration. 18. We can conjure up as to how the incident might have taken place as according to P.W-2 the persons who had gone to the land of Kotram Hembram had after the work was done consumed ‘haria’ and these persons including the appellant as well as the deceased were returning when the occurrence had taken place. In absence of motive, there can be no other reason for such assault except such act being executed in an intoxicated state. There is nothing to suggest that the appellant has criminal antecedent or he is a threat to the society or for that matter he cannot be rehabilitated or reformed. These factors would not put the case of the appellant in the pedestal of “rarest of rare case” and consequently we modify the sentence awarded to the appellant by imposing upon him the sentence of rigorous imprisonment for life. 19. This appeal as a consequence to the discussions made hereinabove is dismissed by affirming the order of conviction but modifying the sentence imposed upon the appellant as noted above. 20. Pending I.As, if any, stand closed. (R. Mukhopadhyay, J.) (Deepak Roshan, J.) Jharkhand High Court, Ranchi, Dated the 10th June, 2024 Rakesh/NAFR. 9 Death Reference No. 1/2024 With Cr. Appeal (DB) No. 274/2024